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Book Review
| Brian K. Landsberg, Free At Last to Vote: The Alabama Origins of the 1965 Voting Rights Act, Lawrence: University Press of Kansas, 2007. Pp. 280. $34.95 (ISBN 978-0-7006-1510-0).
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| Alabama is to the right to vote as the Jehovah's Witnesses are to the First Amendment. Just as the latter have prompted so many of the cases central to constitutional development of freedom of speech and religion, Alabama has been at the center of nearly every landmark decision, good and bad, concerning the right to vote. It was the notorious (and still on the books) 1901 Alabama Constitution, with the most extensive suffrage restrictions ever adopted in American history, that the Supreme Court refused to address when the Court stood aside at the start of the twentieth century and permitted the massive disfranchisement throughout the South of black and poor white voters. When the Court began to move away from this reluctance in the late 1950s, it was Alabama that provoked the change, as the Court struck down the state's attempt to redraw the boundaries of Tuskegee, to exclude most black homes, a technique the state invented in response to rising black political expression. In the 1960s, one of the two most important Supreme Court decisions of the twentieth century established the one-person, one-vote principle in the process of striking down the extreme malapportionment of the Alabama legislature. Twenty years later, the Supreme Court found a felon disfranchisement law unconstitutional for the only time in the Court's history when it confronted one continuing remnant of Alabama's 1901 constitution. |
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As Brian Landsberg's engaging, important book shows in illuminating detail, it was also Alabama that accounts for much of the structure of the 1965 Voting Rights Act. The 1965 Act is the most effective civil-rights statute Congress has ever enacted. Landsberg's central and compelling theme is that virtually every element in the Act that accounts for its success is directly attributable to what Department of Justice (DOJ) lawyers learned from litigating cases in places like Sumter, Elmore, and Perry counties under earlier, weaker voting-rights provisions enacted in 1957, 1960, and 1964. While much attention, academic and popular, has been paid to the civil rights movement as a social movement, far less attention has been aimed at the role of government lawyers who did the heavy lifting of generating detailed insight in the courtroom of how the system of disfranchisement worked and what it would take for the national government to undo it. My former boss, Justice Thurgood Marshall, would agree with Landsberg's theme; Marshall always believed that, while the social protest movements generated the most visibility, it was legal knowledge about how to structure institutions, incentives, and enforcement that was the key to effective civil-rights legislation. As Landsberg, who participated in several of these pre-1965 cases as a young DOJ lawyer, sums up the point his book seeks to chronicle:
"Had there been no cases but only the official recalcitrance and the violence at the Edmund Pettus Bridge, it seems unlikely that the Congress would have adopted the effects test, the freezing principle, or federal examiners and observers, the preclearance requirement, or universal suffrage"—that is, the features that made the Act work on the ground. |
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In recovering the rich history of the pre-1965 Alabama cases, Landsberg also sketches vivid portraits of key players that offer deep, often surprising insight into the social, political, and legal structures of disfranchisement. Perhaps the most remarkable is Ruby Pickens Tartt, a member of Sumter County's Board of Registrars, responsible for registering voters, in the 1950s. Tartt had unusually close ties with the black community; she attended black churches, visited black homes, wrote stories about the indefensible treatment of blacks in the South, sought (unsuccessfully) to have a sculpture placed in the county courthouse to honor a black child who had died trying to rescue a drowning white child, and asked to be buried by the fence that divided the white and black cemeteries. Yet she was a major obstacle to registering black voters out of a paternalistic belief that most blacks "do not keep up with public events or are easily misled by unscrupulous whites." There is the first federal referee, Ozmus Sigler Burke, appointed in Perry County under provisions of the 1960 Act that empowered local federal district judges to appoint local referees to register applicants after the court had found a pattern or practice of illegal deprivation of the right to vote; when this referee turned out to be no better than the local registration officials he replaced, Congress in the 1965 Act replaced the referee provision with federal administrative appointment of non-local federal examiners. And there are the DOJ lawyers themselves, who functioned as much as investigators as lawyers, as they tediously sought to decipher how every individual registration application had been handled and why. |
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Landsberg's book combines legal, social, and oral history, personal memoir, and institutional analysis regarding the relationship between litigation and the national legislative process. It is a forceful contribution to understanding the relationship between lawyers and social change in accounting for the remarkable success of the 1965 Voting Rights Act. |
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| Richard H. Pildes
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| New York University Law School |
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