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(DV) Gerard: Supreme Court Nominee John G. Roberts and the Voting Rights Act







Supreme Court Nominee John G. Roberts
and the Voting Rights Act

by Gene C. Gerard
September 5, 2005

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Last month was the fortieth anniversary of the Voting Rights Act. This was one of the most significant pieces of civil rights legislation in American history. It finally made it possible for African-Americans to exercise their right to vote in the South. The act did what a constitutional amendment could not.

Following the Civil War, co-called “Radical Republicans” (ironically enough) in Congress attempted to extend to former slaves the same rights that whites enjoyed. This included vigorous lobbying for ratification of the Fifteenth Amendment in 1870, which extended the right to vote to black men. But for nearly the next 100 years, the amendment had little effect on the South. Most African-Americans found it all but impossible to vote.

In 1871 Mrs. Harriet Hernandes, an African-American resident of Spartanburg, South Carolina was called to testify before the Joint Congressional Select Committee, which was investigating the condition of blacks in the South. During her testimony, Mrs. Hernandes revealed that she had been pistol-whipped and beaten by members of the Ku Klux Klan. When a Congressman asked her why she had been beaten, she replied that it was because her husband had voted in a recent election. A Klansmen told her, “You can tell your husband that when we see him we are going to kill him….He voted the radical ticket.” When another Congressman asked her how many other wives in her neighborhood had been beaten she replied, “It is all of them, mighty near.”

Almost a century later, little had changed in the South. In the early 1960s, barely a quarter of African-Americans were registered to vote. In 1964, various civil rights and religious organizations undertook a massive voter registration drive in the South known as “Freedom Summer.” By the end of the summer, 15 civil rights volunteers had been murdered and only 1,600 blacks had been registered to vote.

The following year, during a voter registration march in Marion, Alabama, a black marcher was killed by the local sheriff’s deputies. Only a few days later, at another march in Selma, Alabama the Ku Klux Klan, in league with the sheriff’s department, attacked the activists, killing a white woman who was attempting to protect her fellow black marchers. This devastating violence finally prompted Congress to pass the Voting Rights Act.

This legislation banned the literacy tests Southern states used to prevent blacks from registering to vote. More importantly, it placed the registration and voting process under the authority of the federal government. It required the government to send examiners into any county in which less than 50 percent of African-Americans were registered to vote, and actively register local residents.  In doing so, the federal government made it possible for millions of blacks to register and vote for the first time.

By the early 1970s, the proportion of blacks who were registered to vote in Selma, Alabama had risen from two percent to 60 percent.  In Mississippi, the number of blacks registered to vote rose from 22,000 to 300,000 during the same time period. Nationally, 20 percent of all African-Americans were registered in 1960, 39 percent in 1964, and 62 percent in 1971. In 1965, there were only 72 elected black officials in the South. By 1980, there were over 3,000, including the mayors of Atlanta and Birmingham.

Considering what the Voting Rights Act of 1965 accomplished, it’s disturbing to learn that President Bush’s nominee to the Supreme Court, Judge John G. Roberts, opposed it in 1981 while serving as an assistant to Attorney General William French Smith in the Reagan administration. Congress was set to renew the act the following year. Congress was also discussing the act in light of a 1980 Supreme Court ruling that stipulated that a violation of the act had to be intentional, and not merely having the effect of disenfranchising voters. Congress wanted to remedy this interpretation of the act by passing a law that would also deem non-intentional voter discrimination as unlawful.

Based on documents recently released by the National Archives, Mr. Roberts regarded the Voting Rights Act and Congressional efforts to strengthen it as “a radical experiment,” according to one memo he wrote. In other memos he advised the Reagan administration to oppose Congress’ effort to make voting regulations illegal if they were unintentionally discriminatory. He argued that if the government was forced to support voters who were discriminated against, albeit unintentionally, this would “provide a basis for the most intrusive interference by federal courts into state and local processes.” It’s troubling that a future Appellate Court judge and nominee to the Supreme Court would regard the government’s efforts to ensure that all citizens have a right to vote, and to have their vote counted, as “intrusive interference.” However, it does explain why Judge Roberts provided legal counsel to the Bush campaign in the 2000 Florida recount. 

Thankfully, Congress did not share Mr. Roberts’ parochial view on voting rights. The House of Representatives passed a bill outlawing unintentional voter discrimination by a vote of 389 to 24. In the Senate, the bill was passed by a vote of 85 to eight. Even Strom Thurmond, the racist and ardent segregationist senator from South Carolina, voted in support of the bill.

Judge Roberts will be testifying before the Senate Judiciary Committee this week. He should clearly and fully articulate his views on the Voting Rights Act. Unless he admits that his previous positions were poorly reasoned, his nomination to the Supreme Court should be rejected.  

Gene C. Gerard teaches American history at a small college in suburban Dallas, and is a contributing author to the forthcoming book Americana at War. His previous articles have appeared in Dissident Voice, Political Affairs Magazine, The Free Press, Intervention Magazine, The Modern Tribune, and The Palestine Chronicle. He can be reached at

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