The Supreme Court and the Undoing of the Second Reconstruction
Kousser, J. Morgan, National Forum
At the height of the First Reconstruction in the 1870s, over 300 African Americans were elected to the state legislatures and the U.S. Congress from the eleven states that had seceded during the Civil War. By 1880, however, violence, intimidation, ballot-box stuffing, poll-tax and voter-registration laws, and gerrymandering had reduced the number of blacks elected to those offices by more than two-thirds.
But the whitening of southern politics was less abrupt and more the product of legal and institutional changes than in the usual textbook picture. Typically, one development fed another: politicized violence allowed the upper-class-dominated Democratic party to control the polls and invent election returns. Legislators elected by fraud could then pass laws that made it more difficult for their opponents, especially blacks, to vote and to elect candidates they favored. In a partly shrunken electorate with Republicans or Populists at a disadvantage because of legal as well as extra-legal machinations, Democrats could eventually pass state constitutional amendments that entirely disfranchized African Americans and poor, uneducated whites, thus rendering irrelevant the parties they supported.
These processes could have been short-circuited at any point by congressional or judicial actions. But northern Democrats, mainly for partisan reasons, joined their southern party allies to block further federal voting-rights laws. No Democrat in Congress voted for a single civil-rights law or constitutional amendment from 1865 through 1920. And despite the U.S. Supreme Court's constitutional duty to enforce the Fourteenth Amendment's equal-protection clause and the Fifteenth Amendment's ban on biased voting laws, the justices openly acquiesced in widespread black disfranchisement. From 1908 through 1962, no black held a state legislative office in the South. The exclusion of blacks from southern congressional delegations lasted from 1900 through 1972.
As more African Americans moved north, where they could vote much more freely and pressure Congress to alleviate southern racial conditions, and as the Supreme Court moved from shielding large corporations from regulation to protecting minorities from discrimination, the nation launched a Second Reconstruction.
Southern blacks had lost the suffrage gradually, and they regained it gradually. After outlawing the white primary and challenging many state discriminatory registration procedures, black leaders successfully pressured Congress to overcome the white southern filibusters that had prevented the passage of any national civil-rights legislation since 1875. When the 1957 and 1960 Civil Rights Acts proved slow and weak, the Civil Rights Movement and bipartisan northern outrage at the suppression of southern black voting power produced the most significant legal development in minority voting rights since disfranchisement -- the 1965 Voting Rights Act. That law not only outlawed literacy tests, but it also condemned the discriminatory administration of seemingly neutral political regulations and facilitated legal attacks on any electoral laws that had discriminatory effects.
While black voter-registration percentages surged, the number of black representatives or even of whites who were very sympathetic to the special concerns of the country's most-discriminated-against group at first only inched upward. Anti-black diehards passed laws shifting from district to at-large elections, requiring runoff elections in majority-white, racially-polarized areas, and annexing largely white suburbs to increasingly black cities. Foes packed African Americans or Latinos into as few districts as possible or scattered them thinly to dilute their influence, while erstwhile friends often concentrated just enough minorities in election districts to ensure white Democratic victories, but not enough to encourage serious minority ethnic candidates to run. …