Voting Rights and the Second Reconstruction
The Rocky Road to the Present...and Beyond

By Chandler Davidson

Vol. 16, No. 4, 1994, pp. 4-7

The quest for full political equality by people of color in America—and particularly in the South—is entering a critical phase. Troubling voting rights decisions issued by the Supreme Court, as well as the Republican ascendancy in Congress, increase the sense of foreboding among civil rights forces. People are asking, "Where are we, and where are we going?" Answering this requires us to ask as well, "Where have we been?" The 75th anniversary celebration of an organization that has played such an important role in the modern struggle for minority voting rights in the South is a particularly appropriate event at which to address both questions.

The evidence we must assess goes back, at the very least, to the First Reconstruction. To streamline my argument, I want to focus on the problems faced by African Americans in a single state, my home state of Texas.

Texas has long had a lower percentage of black population than any other state in the old Confederacy. The political scientist V.0. Key believed that white resistance to civil rights for blacks increased in direct proportion to the black percentage of the population, other things being equal. When he wrote his magnum opus, Southern Politics, Professor Key therefore singled out Texas in the late 1940s as the Southern state most likely to break free of the shackles of racism and forge a new, progressive trail for the other Southern states to follow. So I want to look at Texas historically, during both the First and Second Reconstructions.

Anglo settlers first came to Texas with their slaves in the 1820s, in spite of Mexican antislavery law, and black servitude lasted there until June 19, 1865, when federal troops arrived in Galveston and emancipation was announced. An all-white constitutional convention, following the minimal requirements of President Andrew Johnson's reconstruction plan, created a new constitution that denied blacks the vote, prohibited blacks from serving on juries, forbade interracial marriage, and established black codes severely limiting freedmen's rights in the labor market. This lasted from 1865 until 1869 when, after Congress enacted its Reconstruction laws over Johnson's vetoes, yet another constitutional convention was held. It was called after congressional action enabled blacks to vote, and they overwhelmingly supported another convention. Had they not turned out massively and voted for the convention, it would not have been held.

Although blacks were only ten of the ninety delegates, a "radical" Republican convention enabled the election of twelve blacks to the legislature in 1870.

For four years—the period of Radical Reconstruction in the Lone Star State—Scalawag Republicans, including blacks, were in control of state government. Among their most significant contributions was the creation of a free, publicly-funded school system—the first in Texas.

Restoration of White Supremacy

Then the Democrats regained control and Reconstruction came to an end. A former Texas governor opined that the election caused "the restoration of white supremacy and Democratic rule." Yet another constitution was framed, this one abolishing the free publicly funded school system and a number of other Reconstruction reforms. A process of legislative gerrymandering began which gradually whittled away at the black-majority districts, so that by 1898 the legislature contained a single African American member. His major speech in his last session in office attacked lynching, which was enjoying a widespread comeback as a means of forcing blacks out of politics. In the period from 1870 to 1898 over forty legislative seats had been held by Texas blacks, as well as a number of lesser offices. No legislative seat would be

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held again by a black person in Texas until 1967.

By 1900, with the collapse of the Populist revolt, to which black and white Texas farmers rallied in a futile effort to overcome the conservative Democrats' control of politics, black voters were rapidly being forced out of the electorate through violence, intimidation and, in 1902, passage of the poll tax and laws encouraging the use of the white primary.

African Americans were essentially disfranchised in Texas by 1905, and in spite of numerous efforts funded by the National Association for the Advancement of Colored People, the white primary remained in effect until 1944 when the Supreme Court abolished it as a result of Smith v. Allwright, a case filed in Houston and argued before the court by Thurgood Marshall. No black legislators, of course, held office during the period of disfranchisement.

Although African Americans began to filter back into the electorate after 1944, virtually none was elected to office in Texas until two decades later. In 1964, on the eve of passage of the Voting Rights Act, as few as five African Americans held office at any level, in a state where more than a million black citizens lived, and where in many cities they made up over 30 percent of the population. This paucity of black officeholders was almost certainly the result of intimidation in the rural areas and towns, and white bloc voting in the cities.

The significance of this fact is worth underlining. Virtually no blacks won office in Texas between 1944 - when Smith v. Allwright abolished the white primary and effectively reenfranchised blacks-and 1964, although the number of blacks voting had increased in Texas from less than 75,000 in the former year to 216,000 in the latter year. This is the state, it must be remembered, that Professor Key in 1949 had pointed to as a harbinger of racial progress among the Southern states.

Advent of the Second Reconstruction

Then two things happened. The Warren Court decided a number of important voting rights cases, beginning with Baker v. Carr in 1962; and Congress passed the Voting Rights Act in 1965. In short, the federal government once more intervened in the South, ushering in a Second Reconstruction of electoral politics, with effects much like those in the first.

Literally hundreds of legal battles took place in Texas jurisdictions; struggles over legislative redistricting continued in the 1960s, 1970s, 1980s, and 1990s; the Justice Department was involved across the state of Texas under Section 5 of the act; a plurality of Supreme Court justices tried to restrict the voting rights of minorities in a 1980 decision, which the U.S. Congress overrode two years later; and, from 1966 to the present, conservative whites, including lawyers and judges, frustrated the efforts of blacks and Mexican Americans to elect their candidates to office. Between 1965 and 1994, black legislators again appeared in Texas, and numerous black officials were elected to city, county, and school board posts as well. The number of African Americans holding office increased from about five in 1965 to more than four hundred in the early 1990s. This was primarily the result of federal inter-

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vention during the Second Reconstruction, just as was the election of blacks during the first one a century ago.

Especially noteworthy was the 1972 election to Congress, for the first time in Texas history, of an African American, Barbara Jordan. She and Andrew Young of Atlanta, elected the same year, were the first blacks chosen to represent Southern constituencies in that body in the twentieth century. Today there are seventeen Southern black U.S. representatives.

Three factors were responsible for the rapid growth in black officeholding in Texas since 1966: first, Fourteenth Amendment cases filed by black plaintiffs challenging racial gerrymanderingcases won before the Supreme Court in 1973; second, extension in 1975 of the section 5 preclearance provision of the Voting Rights Act to Texas-an extension that occurred partly because Barbara Jordan had by then become a leader of the House Judiciary Committee; and, third, following efforts of Supreme Court conservatives to undercut the effectiveness of the Fourteenth Amendment in minority vote dilution cases, Congress's 1982 amendment of Section 2 of the Voting Rights Act paved the way not only for sharp increases in black (and Mexican American) officeholding later in that decade but also, in the early 1990s, legislative and congressional redistricting that increased the number of minority districts in both bodies.

Reconstruction Parallels

The parallels between the First and Second Reconstruction in Texas are striking. In both cases black participation in the system resulted from federal intervention. In both cases blacks were able to win office largely because of the creation of state and local voting districts that have been majority black. In 1995, one can say that black Texans in this century have been able to hold office at the legislative level for about a generation, just as they were in the nineteenth century.

The question now is whether the ability of African Americans to win office in Texas-and the other Southern states-will soon be curtailed, just as it was a century ago. This, of course, is the question raised by the Supreme Court's 1993 Shaw v. Reno decision and, more recently, by the Republican capture of Congress.

It is a question whose answer eludes us. The ability of blacks to win election in the South, especially at the state legislative level and higher, is heavily contingent upon the drawing of districts that contain a majority of blacks or, in Texas, a majority of blacks plus Hispanics. Indeed, during the Second Reconstruction, hardly any Southern blacks-and then only under very special circumstances won a state legislative seat in a majority-Anglo district. I recently examined the more than eight hundred elections for Texas legislative seats between 1984 and 1992. Only two African Americans were elected from Anglomajority districts. One was elected from Austin, probably the most liberal city in Texas, thanks to its large college population. The other was a Republican.

This pattern is true for the South as a whole. A recent study of Southern state legislative elections by Lisa Handley and Bernard Grofman revealed that less than one percent of majoritywhite districts elected a black to office in the 1980s. That was a decline from two percent in the 1970s, and about the same as for the early 1990s. The same study found that the increase in black legislative officeholding in the South during the 1970s and 1980s was due almost entirely to the creation of new majority-black districts, not to an increasing tendency of whites to vote for black candidates.

Precious few of these more than sixteen hundred legislative districts would have been drawn to include a black majority-or a Hispanic majority-were it not for the Voting Rights Act and a justice Department willing to enforce it. The North Carolina congressional redistricting case, Shaw v. Reno, which raises questions about the constitutionality of strangely shaped districts drawn purposely to elect black candidates, therefore threatens to remove blacks almost entirely from Congress and state legislatures, and from many local jurisdictions as well. Indeed, if the recently expressed views of Justices Thomas and Scalia in Holder v. Hall* were to become the majority view on the Court, blacks might soon be precluded from holding a single Southern congressional seat. Put differently, something very like the end of the First Reconstruction could occur, at least as concerns black officeholding, although black citizens would still be able to vote.

Perhaps the Court will choose a middle way out, however difficult that option would be to square with the

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tortured logic in Shaw. In other words, it seems plausible that the Court might allow minoritymajority districts to be intentionally drawn in the future, but not with the strangely configured boundaries they now have. As a consequence, white Democratic incumbents, who drew those bizarre boundaries not simply to create majorityblack districts but to protect themselves while at the same time satisfying the Justice Department, would lose more black voters from their districts, to the net advantage of Republicans.

In fact, it is probably true that certain Southern districts Republicans won in 1992 and 1994 resulted from majority-black districts being drawn in 1991 or later under the mandate of the Voting Rights Act, although it is highly unlikely that this phenomenon was as common as the popular press would have it. A careful study of South Carolina senatorial redistricting in 1981 revealed that there is sometimes a trade-off between an increase in majority-black districts and a net gain in Republican seats, which is the reason Republicans were often eager to collaborate with minority legislators at redistricting time.

Blaming the Victims

The interesting thing about this tradeoff, however small or large it turns out to be, is that blacks, Hispanics, and their civil rights allies are blamed for the net loss of Democratic seats. But this is a classic case of scapegoating. The people to be blamed are those large numbers of Southern whites who consistently vote as a bloc against black candidates, and hence deny black voters the chance to elect candidates of their own race. Without this white bloc vote, drawing a few districts to protect black candidates would not be necessary.

In summary, at least two possibilities confront us in Texas and the South. The Supreme Court, if Justices Thomas and Scalia prevail, may effectively prevent the purposeful drawing of minoritymajority districts and thus the election of blacks to legislative and congressional seats. Or the Court, if moderates prevail, may only partially restrict the drawing of minoritymajority districts; but to the extent that the Republican tide in the South continues to flow, there will be a tendency to blame the creation of majorityblack districts under the mandate of the Voting Rights Act.

Is there any chance for a more hopeful scenario to unfold? I think there is, but it presupposes a moderate resolution of Shaw. Then, if the Democrats are able to regain control of Congress and, by enacting legislation that succeeds in halting the growth of Republicanism in the South, put an end to the scapegoating of black voters, it may turn out that black officeholding in the former Confederacy will continue pretty much undiminished.

Is this likely? As our pundits never tire of telling us, the American electorate is quite volatile. It is true that a movement toward Republicanism in the South has been underway for more than a generation, due largely to black Southerners' struggle for the protection of their civil rights and economic security under the aegis of the Democrats, and the resulting exodus of white conservatives from the party. But the nation as a whole has not decisively realigned with the GOP. Unless the Republicans now in Congress turn out to be much more adept at restoring the electorate's confidence in government than the accession to power of the likes of Newt Gingrich, Jesse Helms, and Strom Thurmond would suggest, it is doubtful that they have a secure lock on American government. But the present is nonetheless fraught with political danger for the friends of minority civil rights, and we would do well to think carefully about our options.

*Editors Note: A Georgia case in which Justice Thomas in a dissenting opinion expressed the view that voting rights challenges should be limited to barriers to registration and voting, not to districting schemes and other measures which disfranchise minority voters.

Chandler Davidson is a professor of sociology at Rice University in Houston, Texas and coeditor, with Bernard Grofman, of Quiet Revolution in the South, The Impact of the Voting Rights Act 1965-1990. This article is adapted from remarks prepared for the 75th Anniversary meeting of the Southern Regional Council in Atlanta, Nov. 19, 1994.