6
The 1960s produced not only the reapportionment revolution in American elections but another revolution as well, one that would fundamentally transform its governing institutions and society at large: the civil rights movement. Nine years after Rosa Parks refused to give up her seat in the “colored section” of a Montgomery city bus to a white patron, and after a long campaign of protests, lawsuits, and political advocacy, often met with violent resistance, President Lyndon Johnson signed into law the Civil Rights Act of 1964. The Jim Crow institutions of disenfranchisement and racial segregation that had sprung into existence after the Compromise of 1877 were finally dismantled. This period in U.S. history, from the end of World War II through the late 1960s, has been termed “America’s Second Reconstruction” by the Pulitzer Prize–winning historian C. Vann Woodward. The implication could not have been clearer. After failing for a century to follow through on the promise of delivering civil rights and liberties to all its citizens, the nation was now getting a do-over.
“Echoes of Slavery,” part of a photography series by Curtis Graves.
But there was a new menace looming on the horizon. Now under a constitutional mandate to conduct redistricting every decade, racist state legislators began to realize that the gerrymander presented them with a unique opportunity to reestablish barriers to African American voter participation. Fearful that an influx of black politicians would precipitate a takeover of their state governments, upsetting the delicate political order that had kept those communities on the sidelines and preserved their own privilege, these legislators set to work crafting districts that made it next to impossible for African American candidates to successfully compete.
Many of the tools they utilized were virtually identical to the gerrymandering strategies discussed in chapter 3. The logic of racial vote dilution, as the practice of using gerrymandering to deny minority groups a voice in government is often termed, proceeds from the same initial starting point as partisan gerrymandering. Exactly as the votes of a disfavored political party may be minimized, or canceled out, by cracking their supporters into districts where they are outnumbered, so too may a sufficiently large and geographically concentrated racial minority group be denied an opportunity to elect representatives of their choice by dividing their members among a series of districts where they are outnumbered by the white majority. A second method, known as submerging, utilizes at-large or multimember districting systems to, as the name suggests, drown out the votes of a minority group by immersing them in a sea of surrounding white communities, who vote in sufficient numbers to control all of the seats within the jurisdiction. Two related phenomena combine to make these strategies particularly effective in the arena of racial gerrymandering: residential segregation and racially polarized voting.
Residential segregation refers to the physical separation of individuals of different races into separate and distinct neighborhoods. It can occur because of deliberate government policy, through exclusionary zoning restrictions, redlining, and segregated public housing. It can also stem from private action, such as realtors engaging in racial steering, or by the aggregation of individual discriminatory decisions by landlords, homeowners, and lenders about whom to rent, sell, or lend money to. These factors combine and magnify one another over time, creating a situation where racial minority groups tend to be concentrated in certain neighborhoods, while white Americans tend to be concentrated in others. Take a drive around any major city in the nation, and it’s hard not to observe this phenomenon firsthand. Residential segregation makes minority communities an easy target for gerrymandering, because they can be more efficiently identified, isolated, and then carved up to dilute their votes.
Racially polarized voting is the tendency of voters from different racial or ethnic groups to support different candidates for elective office. An article in The University of Chicago Law Review specifies two conditions that must be met for racially polarized voting to exist: “(1) the political preferences of majority-race and minority-race voters diverge substantially; and (2) the racial majority votes with enough cohesion to usually defeat the minority’s candidates of choice.” It must be noted that the existence of racially polarized voting does not necessarily require or even imply that there is widespread racism. When minority voters are outnumbered, and tend to vote for different candidates from the white majority, it has the effect of making it almost impossible for those candidates to win. But where racial animus on the part of the white population is present, the effects become even more severe.
The essence of vote dilution, in the words of the Supreme Court justice William Brennan, “is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” And crucially, as the sociologist Chandler Davidson notes, it “can operate even where there are no barriers to casting a ballot, and when the group’s candidates can run for office without hindrance.” This made it particularly attractive to those state legislatures whose Jim Crow–era discrimination practices had now been outlawed. And while numerous, generally southern states would embrace this new tool of minority disenfranchisement, nowhere was racial gerrymandering more pervasive than in Texas.
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The Lone Star State had not elected an African American to its legislature since the nineteenth century, but that did not discourage Curtis Graves. The twenty-seven-year-old Texas Southern University graduate—whose great-grandparents on his mother’s side had both been the children of black slaves and white slave masters on the Evergreen Plantation in St. John the Baptist Parish, Louisiana—was ready to make his mark on the city that had become his adopted home. The Houston of the late 1950s, when Graves had arrived on the TSU campus in his blue 1951 Mercury, was one of transition. A booming oil and natural gas industry had seen the city’s population grow by almost 60 percent over the previous decade, but the economic windfall was felt almost exclusively by its white residents. Houston’s lunch counters, hotels, public transportation, department stores, and drinking fountains were all still segregated along racial lines. Brown v. Board of Education, the Supreme Court case that ordered the desegregation of the nation’s public schools, had been decided only five years prior.
The university where Graves enrolled in the fall of 1959 was itself a product of civil rights litigation. In 1946, Heman Marion Sweatt, an African American school principal from Beaumont, had applied to the University of Texas Law School in Austin but was denied admission on account of his race. With the assistance of Thurgood Marshall and the NAACP, Sweatt filed a lawsuit against the school’s president, Theophilus Painter, in Texas state court. In an effort to moot the litigation, which they feared might lead to a court order requiring the state to desegregate all of its institutions of higher learning, the legislature passed a bill establishing the Texas State University for Negroes in Houston, which was renamed Texas Southern University in 1951. Unsatisfied with the prospect of studying law at what was, at the time, an obviously inferior institution, Sweatt took his case all the way to the Supreme Court. In 1950, the justices ruled unanimously that the equal protection clause required his admission to the University of Texas. Curtis Graves wanted nothing more than to follow in Sweatt’s footsteps as a civil rights pioneer, and like Sweatt he would lend his name to a lawsuit that eventually found its way before the nation’s highest court.
Graves was born in New Orleans in 1938, the son of Fagellio “Buddy” Graves, who along with his uncle Butsy was the first African American to own an Esso gas station in the state of Louisiana. His upbringing was a study in contrasts. His father was actively involved in the NAACP and the cause of civil rights (“Thurgood Marshall slept in my bed while I slept on the couch—that’s a fact!” he told Texas Monthly in 2015), but the family also took pains to shield young Curtis from the harsh realities of segregation and racism in the Jim Crow South. The same article recounts stories from his childhood of his mother, Mabel, engaging in subterfuge to conceal the ugly underbelly of prejudice in the Big Easy. “She told her son that they sat in the back of the bus because it was cooler, or sat upstairs at the theater to see better, or avoided meals at department stores because the glasses weren’t clean.”
Initially majoring in math at Xavier University in New Orleans, he dropped out and enrolled at TSU after the dean of students, observing his C average during his first two years of study, suggested that he give manual labor a try instead. It was there that he became involved in the budding civil rights movement, making the acquaintance of Eldrewey Stearns, a law student and accomplished debater, and Earl Allen, a fellow undergraduate. The three began to organize sit-ins on campus and at local grocery stores, garnering the attention of the local news media. Houston’s mayor, Lewis Cutrer, a segregationist who had run on a platform of stoking racial fears about a black takeover of the city government, attempted to pressure TSU’s president, Sam Nabrit, into quashing the protests. But Nabrit, whose brother was an NAACP attorney who had been involved in a successful legal challenge to the state’s white primary laws—which the Supreme Court struck down in the case of Smith v. Allwright in 1944—was unmoved. “Primarily, you’re citizens of the United States,” Graves recounts Nabrit telling a student assembly at the time. “Secondarily, you’re students. So you have to do what you have to do.”
Graves did what he had to do. He and his fellow students hatched a plan to disrupt a parade that had been planned in the city for the astronaut and Houston native Gordon Cooper. They hoped that their protest would provoke a reaction from the city government that would ignite a broader movement for desegregation and bring national attention to their cause. The plan worked, although not in the way that they anticipated. On the eve of the parade, which 300,000 Houstonians were expected to attend, community leaders brokered a deal with local business owners to desegregate the city. But there was one condition: it had to be kept on the down low. “What was finally decided was that they would desegregate restaurants and department stores and all the Houston transit authority in one day,” recalled William Lawson, a local pastor who advised the protesters, “and none of the major media—the Post, the Chronicle, the television stations—would mention it.” In contrast to the fire hoses and attack dogs that had greeted student demonstrators in Birmingham, Graves and his friends had desegregated Houston without violence or fanfare. The protest they had planned for the homecoming parade never happened. “Our signs were ready,” he later lamented to a reporter. “I was at the coffee shop at the Y when Eldrewey came in and said a deal had been struck.”
After graduating from TSU, Graves went to work as the manager of a local savings and loan association, and at that point a career in politics could not have been further from his mind. But after attending a party at Lyndon Johnson’s ranch at the invitation of his boss, the community organizer Mack Hannah—among the guests were various political heavyweights, including Chief Justice Earl Warren—he decided to get involved in a friend’s campaign for school board. Discovering that his friend shared a last name with an incumbent white board member, Joe Kelly Butler, Graves devised a strategy to capitalize on the at-large system that was in use for the election. “If we can craft our campaign so we never show up at a white rally,” he advised his friend, “we never allow a picture of you to be in the papers, we never do anything in white Houston, and we only campaign in black churches, the white folks will think that you are Joe Kelly Butler,…and you’ll win.” And indeed he did, becoming only the second African American to sit on the Houston school board, after Hattie Mae White in 1958.
Buoyed by his success as a campaign manager, and inspired by a visit to the state capitol in Austin, Graves decided to run for the state legislature in 1966. His timing could not have been better. Earlier that year, based on the precedent set by the Supreme Court’s decision in Reynolds, a federal court had ruled in the case of Kilgarlin v. Martin that the Texas House of Representatives and Senate districts must be redrawn on the basis of population. A second parallel lawsuit, filed by the west Texas oil millionaire and future president of the United States, George Herbert Walker Bush, resulted in a ruling that struck down the state’s U.S. House of Representatives districts on the same grounds.
The new redistricting plan passed by the legislature increased the number of house seats allocated to Harris County, home of Houston, from twelve to nineteen, and the number of senate seats from one to four. Meanwhile, the previous at-large system was replaced with single-member districts for the senate, and three multimember districts for the house, which followed the same boundaries as the county’s redrawn congressional seats. Commenting on the new plan, the court observed that “Negroes residing in the four metropolitan districts, like all other citizens of every other color, creed and nationality, have the opportunity to vote for more Representatives and Senators than before.”
Graves was not the only minority candidate to seek to take advantage of this more fertile electoral environment. He was joined by Lauro Cruz, a thirty-three-year-old Mexican American precinct judge who also sought a house seat in a county that had not elected a Latino candidate since 1836. Also running was Barbara Jordan, a thirty-year-old attorney and fellow TSU graduate who had mounted two unsuccessful house campaigns in 1962 and 1964 and was now seeking a seat in the senate. All three ran as Democrats, at first blush a curious choice given the party’s continuing support for Jim Crow in many parts of the South, but a necessity in their heavily Democratic districts. The Republican Party would not even bother fielding a candidate.
Of the three, Jordan had the name recognition and political connections and was expected to win comfortably. Graves and Cruz were unknown commodities and had to work for their respective nominations. Often campaigning together, driving around Houston in a black Volkswagen Beetle, they blanketed the district with signs and visited African American and Latino churches to encourage voter turnout. In his Texas Monthly interview, Graves recalls one incident where a white police officer observed him hopping a fence to attach a campaign sign to the underside of a billboard and began to admonish him. “Certainly, officer,” he informed the cop, “I was just taking this down.”
I interviewed Curtis Graves in April 2020 by telephone from his home in suburban Atlanta, where he retired in 2003 after a long career in the federal bureaucracy. He continues to work on his memoirs while moonlighting as a critically acclaimed fine art photographer. But these days the most famous member of the Graves family is his daughter, Gizelle Bryant, the reality TV star of Bravo’s Real Housewives of Potomac. Now eighty-one years old, Graves speaks in a slow, assured bass tone, his memory still remarkably sharp as he reminisces on events from almost fifty years prior with uncanny clarity, regaling me with numerous stories from his days as a civil rights pioneer.
The 1966 election was the first to be contested since the passage of the Voting Rights Act a year earlier, and minority voters were energized. In the end, Graves, Cruz, and Jordan all won their contests handily, while in Massachusetts the Republican Edward Brooke became the first African American to be elected to the U.S. Senate since Reconstruction. Also victorious were two Houston-area candidates for the U.S. House of Representatives with whom Graves had struck up friendships during their time on the campaign trail, one a Democrat and the other a Republican. The Democrat, Bob Eckhardt, who would go on to serve for fourteen years in Congress, had been a crucial ally to Graves and Cruz when it came to courting the votes of liberal white Houstonians. “If we went to a Latino church, Lauro was the lead person,” Graves explained to me. “If we went to a white church, it was Eckhardt, and if we were in the black church, it was my responsibility.”
The Republican candidate whose acquaintance they made during the campaign was none other than the man whose lawsuit had resulted in the creation of the district he was now running in: George H. W. Bush. “George Herbert Walker and I became really good friends as a result of that first campaign,” Graves recalled, “when he was running for Congress and I was running for the state house. We stayed in touch, even throughout his presidency.” Graves also fielded a congratulatory phone call from another president, Lyndon Johnson, at the election night victory party after the Democratic primary. He later posed with Jordan in a photo for a Time magazine article headlined “Texas: A Quiet Change,” in which they stood together beneath a sign that simply said “Victory.” “Neither Democratic candidate campaigned exclusively on race,” the article noted, “but concentrated instead on bread-and-butter issues that concern whites as much as Negroes in their working-class district. The result attested to a quiet change in the minds of many white Americans.” The relationship between Graves and Jordan, however, soon found itself on the rocks.
Graves received slightly more than 50 percent of the vote in his primary, narrowly avoiding a runoff election against the second-place finisher. This included a strong showing of between 25 and 40 percent in his district’s white precincts. Jordan won her race with 65 percent of the vote and performed even better with white Houstonians, capturing between 30 and 50 percent in those precincts. Cruz was forced into a runoff after garnering only 47 percent of the vote in his contest, short of the 50 percent threshold to be nominated outright. Despite the Houston Chronicle’s endorsing his white opponent, he won it comfortably. With all three running unopposed in the general election later that year, victory was assured. But it did not come without substantial cost.
Graves found himself the victim of a vicious campaign of racism, threats, and harassment, during both his state legislative race and his later bid for mayor. “People would call and say they would castrate my children,” he told me. “I’d get death threats through the mail. Somebody called one night and said, ‘Is this Curtis Graves, the nigger?’ and I said, ‘Yes, it is,’ and he said, ‘Nigger, you’re gonna die in ten minutes.’ And what do you do then? Do you pick up your children and your wife and run in the backyard because you think that there’s a bomb somewhere? It was a tough time.” Unable to count on the protection of the Houston Police Department, whose chief he describes as “to the right of Attila the Hun,” Graves had to take his own measures to guarantee his security during the campaign. “There were two or three guys who had volunteered to protect me, 24/7,” he remembered. “They did not allow me to drive myself anywhere, and they were all armed. If it weren’t for them, I don’t know if I’d have made it through that.”
The political careers of Graves and Jordan, who entered the Texas statehouse at the same time in January 1967, could not have been more different. Jordan was a conciliator and consensus builder, steering clear of controversy while diligently building relationships with colleagues and cultivating political influence. But Graves’s brazenness and confrontational style that had served him so well as an activist were ill-suited to the day-to-day grind of policy making in Austin, and he quickly alienated the powers that be. “If I said I was in favor of a bill, it wouldn’t pass,” he later reflected, and he largely failed to move the needle on any of the grandiose proposals that had fueled his primary campaign.
On one memorable occasion, decked out in the spotless white suit he often wore around the statehouse, Graves pulled a pistol on the floor of the house during a debate on gun control and fired off a few blanks to better emphasize his point. On another, he climbed on top of the press table to gain a better vantage point from which to shout questions at the Speaker. Perhaps his most notable achievement was a continuation of his earlier student activism. He led a successful campaign to desegregate the Austin Club, a popular dining hangout for members of the legislature. Though both Jordan and Graves were comfortably reelected in 1968 and 1970, and Jordan even endorsed Graves in his unsuccessful 1969 bid for mayor against the Republican incumbent, Louie Welch, their clash of personalities presaged the later deterioration of their relationship, with both harboring desires for higher political office. The same office, as it turned out.
Curtis Graves addressing the Texas House of Representatives, 1971.
The 1970 census marked the first time that Texas’s legislative districts would be drawn afresh to comply with “one person, one vote,” rather than under the aegis of litigation, as had happened in 1965. Jordan, who by this point was eyeing a bid for Congress, had been appointed by Lieutenant Governor Ben Barnes as vice-chair of the senate’s redistricting committee, giving her significant influence in the drawing of the new boundaries. Graves, meanwhile, was on the outside looking in. Well aware that Houston would be gaining an additional seat in Congress, and that Jordan could use her clout to craft a district that would represent the city’s African American community, one that she herself would be uniquely positioned to run in, Graves set his sights on her soon-to-be-vacated senate seat. But he had made many enemies during his tenure in Austin, and those chickens were about to come home to roost. “Curtis Graves wanted that seat,” wrote the Houston-area representative Craig Washington. “Yet the power dynamics in the Senate would not allow that to happen; Lieutenant Governor Ben Barnes, the more conservative Senators, and the business lobby reportedly determined that they would never draw a district that Curtis could win.”
Barbara Jordan presiding over the Texas Senate, 1972.
The Legislative Redistricting Board redrew Jordan’s Eleventh District so that it no longer contained a majority of African American voters. Graves, discouraged, resigned himself to the fact that he could never hope to compete for the seat. Jordan’s exact role in this process is somewhat unclear, although Graves himself certainly believed that she had been part of the conspiracy. “She has sold us out,” he told the press at the time, and even decades later he still appeared to harbor a grudge. “She put my house in the district that included River Oaks,” he told Texas Monthly. “I called it ‘the fickle finger district’ because it had a little finger that went down and got my house. I was so pissed I didn’t know what to do.”
Other members of the legislature at the time defended Jordan, including Bob Eckhardt, who is quoted in her biography as saying, “It was not Barbara’s trade-off. Graves was rather flamboyant and they didn’t want him.” Shut out of the possibility of a senate bid, Graves decided to seek revenge by challenging Jordan in the Democratic primary for the newly created U.S. House of Representatives seat. “If there is a collision course between Mr. Graves and me, I shall not defer,” she told the Houston Chronicle. “I shall not defer to him or anyone else if I think I can win.”
In truth, Graves never really had a shot at this seat either. Jordan’s connections to the Austin political establishment allowed her to raise five times as much money as he did during the campaign, and she earned the endorsements of the Chronicle and prominent local Democratic Party leaders. She appeared with Lyndon Johnson at a fundraiser, and a photograph of the two embracing ran across the pages of the local newspapers as Election Day approached. Desperate, Graves attempted to tie Jordan to the Sharpstown scandal, an insider-trading scheme that eventually ensnared the governor, Preston Smith, along with several members of the legislature. He vilified her in the press as the “Aunt Jemima of politics,” but to no avail.
Jordan won the primary with 80 percent of the vote to Graves’s 20 percent and went on to become the first African American woman to represent a southern state in Congress. Her career would hit even greater heights when she delivered the opening statement in the House Judiciary Committee hearings during the impeachment of President Richard Nixon, and she later became both the first African American and the first woman to deliver a keynote address at the Democratic National Convention. Graves, meanwhile, left both the house of representatives and the state of Texas in 1973, eventually settling in Washington, D.C., and embarking on a thirty-year career in the academic affairs division at NASA.
The job at NASA came with a little help from his old friend George H. W. Bush, now the director of the CIA. “When I was recruited by NASA, I had to fill out this big application form, and they asked for references,” he told me. “And I thought to myself, well, George would be a good reference for me, so I called him and asked if he’d write a letter of recommendation for me. He said, ‘No, I’ll tell you what I’ll do that’s even better than that. I know [the NASA administrator] Dr. Fletcher. As soon as we’re off the phone, I’ll call him and tell him to hire you.’ ” But Graves still had one last major contribution to make in Texas before departing politics entirely. It came in the form of a federal racial gerrymandering lawsuit that he had filed in October 1971. In it, he mounted a constitutional challenge to the very redistricting plan that had denied him a seat in the state senate and a voice in that chamber for Houston’s African American community.
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The legal fight against racial gerrymandering had begun even before the Supreme Court’s “one person, one vote” rulings made redistricting a fixture in the American political landscape, before the civil rights movement had broken down the Jim Crow–era restrictions on minority political participation. In 1957, the Alabama state legislature, at the behest of the white supremacist senator Sam Engelhardt, who was also the executive secretary of the White Citizens’ Council, voted to redraw the boundaries of the city of Tuskegee. While whites were outnumbered four to one by blacks among the city’s population, they had long maintained their stranglehold on political power through systemic disenfranchisement. But as more and more blacks were able to register to vote, and their numbers on the electoral rolls began to approach those of white voters, concern of a black takeover of city government prompted citizens to lobby the state legislature.
The resulting bill replaced the city’s previously square boundary with what the Supreme Court later described as an “uncouth twenty-eight-sided figure” that excluded nearly every black community from the city limits. Of the four hundred registered African American voters who had once resided there, only four now remained. The new boundaries also removed the Tuskegee Institute, a historically black college founded by Booker T. Washington in 1881, that would later go on to become Tuskegee University.
A professor from the college, Charles G. Gomillion, acting with the support of the NAACP, filed a federal lawsuit alleging that the redrawing of the city boundaries violated the Fifteenth Amendment to the U.S. Constitution. This Reconstruction-era provision had purported to guarantee equal access to the franchise for all Americans regardless of their race. The failure of the federal government to properly enforce the amendment for almost a century, opening the door for the widespread disenfranchisement of African American voters, remains one of the most devastating civil rights failures in the nation’s history.
But with the plethora of progressive justices who had been appointed by Presidents Roosevelt, Truman, and Eisenhower, the cause of civil rights now had a more sympathetic audience on the nation’s highest court. “The [Fifteenth] Amendment nullifies sophisticated as well as simple-minded modes of discrimination,” Felix Frankfurter had written in a 1939 case striking down Oklahoma’s use of a grandfather clause—one that exempted whites from registration restrictions that were designed to make it harder for African Americans to vote—and he and his brethren were about to follow through on that promise. In 1960, they handed down their decision in Gomillion v. Lightfoot and in a unanimous ruling declared that the gerrymandering of the city’s boundaries violated the Constitution.
Map of the Tuskegee gerrymander, 1957.
Even Frankfurter found the allegations of racial discrimination in the case compelling enough to justify at least a minor detour into the political thicket. “Act 140 was not an ordinary geographic redistricting measure even within [the] familiar abuses of gerrymandering,” he argued in his majority opinion. “If these allegations upon a trial remained uncontradicted or unqualified, the conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote.” On remand, the lower court permanently reinstated the original boundaries. Eleven years later, Johnny Ford, a thirty-year-old graduate of Alabama’s racially segregated public school system, was elected as the first African American mayor of the city of Tuskegee. He defeated his white opponent, the incumbent mayor, Charles M. Keever, by only 124 votes. Ford would go on to serve eight nonconsecutive terms, totaling thirty-two years in office, before losing his reelection bid in 2016.
But precisely as doors seemed to be opening for African American candidates all over the South, the door to Curtis Graves’s career in Texas politics was about to slam shut. His lawsuit, Graves v. Barnes, was heard before a three-judge panel of the U.S. District Court for the Western District of Texas in 1972. Even before the trial took place, his complaint had already become subsumed within the broader legal fight over the intricacies of the 1971 redistricting. Though he had filed the initial suit in Harris County, Graves’s case was consolidated with three others that raised similar claims: a “one person, one vote” challenge to alleged population variances in the state house of representatives plan; a racial gerrymandering challenge to the use of multimember districts in Dallas County; and a similar cause of action in heavily Latino Bexar County, home to the city of San Antonio.
Graves fought hard against the consolidation. He petitioned the court to keep his case separate from the others, fearing that his claim might be eclipsed by the broader forces now at work. But his pleas were denied. “I preferred to have it separate, because to me it was a unique situation,” he told me, “sometimes you get lost in the shuffle.” And this early loss was merely a precursor of what was to come. After more than a decade of litigation, and following four rulings by the district court, one by the U.S. Court of Appeals for the Fifth Circuit, and two trips to the U.S. Supreme Court, Curtis Graves still had not received the relief that he so craved.
“We are once again in the Texas sector of the political thicket of legislative redistricting,” began the ruling of the three-judge panel in Graves I, the opening salvo in the epic twelve-year legal saga that was about to play out, “and required to contour the condition of the individual trees as well as the physiography of the forest as we explore for ‘crazy quilts,’ ‘groves,’ contiguity, compactness, specie, motivation in planting, and other possible impedimenta to constitutionality in redistricting.” And acknowledging the legal morass that had already been created by the Supreme Court’s rulings during the reapportionment revolution, the court went on to lament that “in ten years of wandering about this political thicket, we have not yet found the burning bush of final explanation.” But when they turned their attention to the alleged racial gerrymandering of the Eleventh District of the state senate, two of the three judges found insufficient evidence of racially discriminatory intent to justify ordering it redrawn and little legal merit in Curtis Graves’s complaint. “Absent preponderating evidence,” they concluded, “this Court can only conclude that the plaintiff in the Harris County case has failed to show that Harris County’s single-member senatorial districts either operate or were designed to dilute the vote of that county’s black minority.”
In a majority opinion that ran for more than fifty pages, Graves’s allegations were dismissed in four short paragraphs. Adding insult to injury, it was the testimony of his old nemesis, Barbara Jordan, that the court relied on in reaching this conclusion. “Indeed, State Senator Barbara Jordan, a Black,” they wrote, somewhat condescendingly, “testified that she would not concede that she could not win from the new senatorial district because she believed that she could appeal to a broad base of the voters.”
Only one of the three judges on the panel found any merit in Graves’s complaint. The district judge William Wayne Justice, a Texas native who had been appointed to his position by President Lyndon Johnson, had not been fooled by the subterfuge that the Redistricting Board engaged in to conceal the intricacies of their gerrymander. Judge Justice was a jurist who more than lived up to his auspicious name, frequently standing up for the marginalized and the downtrodden in society, no matter the political cost. He drew the ire of segregationists in 1970 when he directed the Texas Education Agency to integrate its more than one thousand school districts, a sweeping order that impacted the lives of almost two million students. Later, he would further enrage the law and order crowd in ruling that the inhumane conditions in the state prison system constituted cruel and unusual punishment in violation of the Eighth Amendment to the Constitution. And now Justice smelled a rat in Austin. As it turned out, there had been bigger things at play than a mere attempt to deny the flamboyant and disruptive Graves a seat in the state senate. Both Graves and Jordan had been mere pawns in a larger game of political chess between the conservative and the liberal factions of the Texas Democratic Party. It was a game that Ben Barnes had been determined to win.
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Ever since the passage of the Civil Rights Act in 1964, the Democratic Party had been at war with itself. “We have lost the South for a generation,” Lyndon Johnson told an aide after signing the legislation into law. And while it took the Democrats more than a generation to finally lose the South for good, Johnson’s embrace of the cause of civil rights drove the first cracks into the foundation of an electoral coalition that had held together since the New Deal. For generations, the party had relied on the votes of conservative southerners and liberal northerners to win elections at the national level, and with spectacular success. Between 1933 and 1973, Democrats enjoyed majorities in both the House of Representatives and the Senate for all but four years: two under Harry Truman, and two under Dwight Eisenhower. But in the 1968 presidential election, the Alabama governor George Wallace—a hard-core segregationist who had thrice sought the Democratic nomination for president, including against Lyndon Johnson in 1964—ran a third-party campaign under the banner of the American Independent Party. His slogan: “There’s not a dime’s worth of difference between the Republicans and Democrats.”
Wallace’s candidacy drove a wedge between the liberal and the conservative factions of the Democratic Party in the South. Conservatives loved his antibusing, law-and-order, blue-collar appeal, and he avoided overt discussions of race in favor of attacks on liberals, intellectuals, hippies, and pacifists. “If some anarchist lies down in front of my automobile,” he told supporters at one campaign rally, “it will be the last automobile he will ever lie down in front of.” When accused of harboring Nazi sympathies, he responded, “I was killing fascists when you punks were in diapers.” In the election in November, Wallace performed alarmingly well, winning almost ten million votes in a three-way race with the Democratic nominee, Hubert Humphrey, and the Republican, Richard Nixon. He also captured the Electoral College votes of five states: Alabama, Arkansas, Georgia, Louisiana, and Mississippi. After maintaining their stranglehold on the “solid South” for almost a century, the Democrats won only one state of the former Confederacy in 1968. That state was Texas.
Ben Barnes (left) with campaign aide Dee Kelly, 1968.
There’s an old saying in Texas politics that the most powerful political office in the state is not that of the governor but that of the lieutenant governor. Elected separately rather than on a single ticket, the lieutenant governor serves as a member of not only the aforementioned Legislative Redistricting Board but also the Legislative Budget Board, as well as several other policy-making bodies. And most significantly, the LG serves as the president and presiding officer of the Texas Senate, controlling not only the agenda of the chamber but also the establishment of all standing and select committees, the appointment of their chairpersons and members, and the committee assignments for all pending legislation.
Ben Barnes, a card-carrying member of the conservative faction of the Texas Democratic Party, had been elected as the state’s lieutenant governor in 1968. He was then able to use his authority in the senate to defeat numerous pieces of legislation favored by the party’s liberal wing. According to the evidence presented at trial in Graves I, Barnes and the conservative Democrats in the senate saw in redistricting an opportunity to bolster their fragile majority. He was supported by the Texas Association of Taxpayers and the Houston Chamber of Commerce, who both lobbied heavily for the Harris County districts to be gerrymandered. “To accomplish this purpose,” wrote Judge Justice, “the requisites of the situation demanded that liberal (black) voting precincts in the inner city be rearranged.”
To comply with “one person, one vote,” four state senate districts would need to be drawn in Harris County. “If conservatives were to succeed in electing conservative Democrats to the State Senate,” testified Searcy Bracewell, a lobbyist who had been involved in the redistricting process, “it would be necessary, first, to devise two districts with a sufficient number of Democrats to defeat Republicans in the General Election; and, second, provide for a contingent of conservative voters in each district large enough to elect conservative candidates over liberal candidates in the Democratic Primary Elections.” What he proposed was essentially a double gerrymander, one that rigged the results of the Democratic primaries in favor of conservative white Democrats while keeping the district as a whole sufficiently blue to prevent a Republican from triumphing in the general election.
It was a tough needle to thread, but that’s precisely what the Redistricting Board did. Adopting almost without modification a map proposed by the Houston Chamber of Commerce, they redrew Harris County’s senate districts to ensure that a conservative white Democrat, rather than a liberal African American Democrat like Curtis Graves, would be best positioned to win. And who was pulling the strings throughout this entire sordid saga? “The depositions of the members of the Legislative Redistricting Board indicate very clearly that Lieutenant Governor Barnes had effective control of the redistricting process.” Judge Justice had seen enough. “I am of the opinion,” he concluded his dissent, “that the evidence more than amply supports a conclusion that the Senate districts in Harris County designedly operate to dilute, minimize, and cancel out the voting strength of blacks.”
Of considerably more interest to the other two judges on the panel than Graves’s complaints about the senate plan, however, were the shocking racial disparities evidenced in the districting system that was put in place for the state house of representatives. It was this component of the case that would mire the judges in litigation for the remainder of the decade, long after Graves I, and indeed Graves himself, had been left in the rearview mirror. Under the house plan that was put in place by the Redistricting Board, Dallas County was consolidated into a single multimember district from which 1.3 million residents would elect 18 members of the state legislature. Meanwhile, in Bexar County, San Antonio’s 830,000 inhabitants formed a similar district from which 11 representatives would be chosen. So effectively did this system sever the connection between members of the legislature and the communities they were supposed to represent that in the words of the court “it is entirely possible for each and every one of the district’s eighteen representatives to reside in the same apartment complex.”
That these two specific counties were singled out despite their clear wishes to the contrary, as expressed in polling evidence submitted to the Redistricting Board, was particularly suspicious to the court, given their large African American and Mexican American populations. Also telling was the clear evidence presented at trial that such consolidated districts frequently “operate to minimize or cancel out the voting strength of the minority.” “While we are far from the Jeffersonian ideal or the modes of Grecian democracy,” pondered the judges, in a brief detour into philosophical musing, “this voter anonymity, this contracting the voter to be a mere speck in a magnitudinous cosmos, takes us far from the founding fathers’ concept of citizen participation.” And, in concluding that both multimember districting arrangements violated the Fourteenth Amendment to the Constitution, the judges succinctly summed up the crux of the issue. “No political, racial or other interest group has any constitutional right to be successful in its political activities,” they conceded. “However, a State may not design a system that deprives such groups of a reasonable chance to be successful.”
On appeal, the nine justices of the U.S. Supreme Court agreed. “The District Court’s order requiring disestablishment of the multi-member districts in Dallas and Bexar Counties was warranted,” wrote Justice Byron White (more on him in chapter 9) for a unanimous Court, “in the light of the history of political discrimination against Negroes and Mexican-Americans residing, respectively, in those counties and the residual effects of such discrimination upon those groups.” But things were far from over. In 1974, two years after their initial ruling in Graves I, the same three-judge panel reconvened to consider additional constitutional challenges to the use of multimember districts in nine other Texas counties.
“We have reviewed each county from a contemporary vista,” they wrote in Graves II, unable to resist another philosophical detour, “while always remembering that our todays are the products of our yesterdays. Here as in many constitutional thickets it has been wisely said that a page of history is worth a volume of logic.” Seven of the nine multimember districting systems, they concluded, also violated the Constitution. Two years later—after Gerald Ford’s attorney general, Edward Levi, concluded based on his own authority under Section 5 of the Voting Rights Act that the Texas legislature’s remedial plan still contained lingering discriminatory effects on the African American population of Tarrant County, home to the city of Fort Worth—the long-suffering panel of Judges Irving Loeb Goldberg, William Wayne Justice, and John H. Wood Jr. were back at it again.
In Graves III, they ruled that there was insufficient time to craft a solution before the 1976 election, punting on the issue for the time being and allowing an interim plan proposed by the state legislature to go into effect. Then, finally, in 1977, now six years and three elections removed from Curtis Graves’s original lawsuit, the panel in Graves IV rejected the interim map and imposed a new set of districts for Tarrant County that had been proposed by the plaintiffs. Judge Wood, who had concurred in the Dallas and Bexar County rulings in Graves I, had by this point become thoroughly disillusioned with the direction the other two judges had taken as the case evolved. “Forewarned, but undaunted by our original judicial foray into the political jungle,” he lamented, in a dissent reminiscent of Felix Frankfurter’s a decade before, “the majority of this Court again sallies forth on another legislative reapportionment expedition. Contrary to my fellow travelers on the Panel, I do not find the scythe of the recent jurisprudence adequate to cleave a path through a myriad of thorny legal precepts…. The once simplistic course toward the goal of ‘one man, one vote’ now appears as elusive as the source of the Nile.” It was a prescient preview of things to come at the Supreme Court.
The dissenting opinion in Graves IV turned out to be one of the final acts of John H. Wood Jr.’s tragically short career on the federal bench. On May 29, 1979, the sixty-three-year-old Nixon appointee, who had earned the nickname Maximum John for the harsh sentences he routinely handed out to federal drug offenders, was assassinated outside his San Antonio home, the victim of a single shot fired from a high-powered rifle. He was the first sitting federal judge to be murdered in the twentieth century. The gunman was a contract killer by the name of Charles Voyde Harrelson, the estranged father of the Hollywood actor Woody Harrelson. The hit had been put out by Jamiel “Jimmy” Chagra, a Lebanese American drug trafficker from El Paso who was scheduled to appear in Judge Wood’s courtroom that very morning on charges of smuggling. After an extensive investigation by the FBI, Harrelson, his wife, Jo Ann, Jimmy Chagra, his wife, Elizabeth, and his brother Joe were all indicted by federal authorities over their role in the conspiracy. Harrelson died in prison in 2007 while serving two consecutive life sentences.
Now living in Washington, D.C., Curtis Graves had followed the case with interest, even though his own complaint no longer played a starring, or even supporting, role. Despite winning rulings in the litigation striking down the discriminatory multimember districts that were used to dilute the African American and Mexican American vote in numerous Texas counties, a landmark step in the broader fight against the pernicious harms of racial gerrymandering, he had lost the one that mattered to him the most: the challenge to the redistricting plan that shut him out of a run for the state senate. “It is what it is,” he told me. “I thought the case should be filed and was glad that it went forward.” And though the litigation had continued to bear his name all the way to the Supreme Court, the legal battle at play was no longer very much about Curtis Graves. The final ruling in the dispute, handed down by the Fifth Circuit Court of Appeals in 1983, concerned questions not of civil rights or racial gerrymandering but of how much the State of Texas would have to award in attorney’s fees to the other side. At least the lawyers got paid.
In truth, the winds of jurisprudence had already begun to shift against Curtis Graves’s cause even before his lawsuit had been filed. Richard Nixon’s victory in the 1968 presidential election had been predicated, in part, on a promise to rein in the liberal excesses of the Warren Court. This appeal was framed most overtly in the area of the rights of criminal defendants, who Nixon believed were being coddled by the soft-on-crime liberals on the bench. But the coded language of the Southern Strategy, a concerted attempt to win over the conservative southern Democrats who had been abandoning the party in droves, also signaled a backlash against the cause of civil rights.
Nixon wasted no time following through on his promise after assuming office. He nominated Warren Burger to the vacant position of chief justice in 1969, followed by nominations at associate justice of Harry Blackmun in 1970 and Lewis Powell and William Rehnquist in 1971. That same year, the Court handed down a decision in the case of Whitcomb v. Chavis, in which they declined to strike down an alleged racial gerrymander of the Indiana state legislature. “Appellees’ claim that the fact that the number of ghetto residents who were legislators was not proportionate to ghetto population proves invidious discrimination…is not valid,” wrote Byron White for the 6–3 majority, in language that has certainly not stood the test of time, “and, on this record, the malproportion was due to the ghetto voters’ choices’ losing the election contests.”
At the core of the judiciary’s attempts to grapple with the issue of racial gerrymandering was the question of what burden of proof those alleging vote dilution should be required to meet. Specifically, could the effects of a given redistricting scheme alone be sufficient for concluding that it was an unconstitutional racial gerrymander, or must those challenging the plan be required to demonstrate that those responsible acted with discriminatory intent when the districts were drawn? This distinction is not of mere academic concern. It strikes to the very core of whether disadvantaged minorities could rely on the courts to protect the constitutional right for their vote to count equally with those of the white majority. As the three-judge panel in Graves I had noted, “Racial motives are rarely stated openly nowadays.”
In a 1964 case, Wright v. Rockefeller, the Court had placed this burden upon the state, rather than the plaintiff. They ruled that so long as the preponderance of the evidence was “equally, or more, persuasive that racial considerations had not motivated the State Legislature,” the challenged plan would be allowed to stand. Applying this precedent, lower courts invoked a balancing test. If a challenged redistricting scheme appeared to have a significant discriminatory effect upon a particular racial minority group, and the legislature could offer no plausible alternative explanation for their actions that was at least as likely as a desire to dilute their votes, then the judge would conclude that the Constitution had been violated. But as the 1980s approached, the Court was preparing to deliver another blow to the cause of minority voting rights. This time, however, a backlash from the public would produce a change of course.
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The city of Mobile looms large and hulking on the horizon of Mobile Bay as you drive west on I-10, its smattering of skyscrapers framed by the container cranes of the only deep-water port in the state of Alabama. Right before reaching downtown, the highway plunges underground beneath the city into the cavernous George Wallace Tunnel, named for the aforementioned governor whose third-party presidential bid irreparably tore the southern Democrats asunder in the 1968 election. The last major city of the Confederacy to surrender to Union forces in the Civil War—three days after Robert E. Lee had laid down his own arms to Ulysses S. Grant at the Battle of Appomattox Courthouse—Mobile had been a colony of France, Britain, and Spain before joining the United States in 1813, part of the West Florida territory acquired by President James Madison.
More cosmopolitan and culturally diverse than its neighbors Birmingham and Montgomery, the city of Mobile was among the first in the state of Alabama to embrace desegregation. Its police force, public colleges, city buses, and lunch counters had all been voluntarily integrated by the end of the 1950s. Yet the city’s public schools remained entirely racially segregated until 1964, a full decade after Brown v. Board of Education declared the practice unconstitutional. In 1963, a group of African American parents had filed a civil rights lawsuit against the school district, leading to the token admission of three black students to the previously all-white Murphy High School. But more effective remedies remained elusive. The case dragged on for more than twenty-five years, before finally being settled in 1988. It was not the only time that the city’s racial politics triggered a protracted legal battle before the federal courts.
In 1911, the Alabama state legislature—pursuant to the recently ratified 1901 constitution—passed legislation permitting every large municipality in the state to form its own city commission for the purposes of home rule. These city commissions, presided over by a largely ceremonial mayor, exercised all legislative, executive, and administrative powers within their jurisdictions. As required under the law, the Mobile City Commission consisted of three commissioners serving four-year terms, each of whom was elected at large by the voters of the city as a whole. “This is the same basic electoral system,” the Supreme Court later noted, “that is followed by literally thousands of municipalities and other local governmental units throughout the Nation.”
Such methods had been used before for the purposes of gerrymandering. Recall, for example, the at-large and general ticket congressional elections that were popular in many states during the early nineteenth century. And just as those earlier systems had often allowed the majority party in the state to maintain control of all the available seats, the at-large method that was utilized for Mobile’s City Commission elections operated to permanently entrench the city’s white majority in power.
By 1970, more than a third of Mobile’s 190,000 inhabitants were black. The minority population was also sufficiently concentrated geographically that it was “impossible to divide the city into three contiguous zones of equal population without having at least one predominantly black district.” Still, no African American candidate had ever been elected to the city commission. Combined with the fact that “Mobile blacks were subjected to massive official and private racial discrimination”—namely, the poll taxes, literacy tests, and other assorted tools of systematic disenfranchisement that characterized Jim Crow–era Alabama—this had the effect of shutting the African American community out of the process of city governance entirely.
In 1976, with the assistance of the NAACP Legal Defense Fund, Wiley L. Bolden, a community activist who had spearheaded a campaign in the 1940s to persuade the state to allow African Americans to register and vote in the Democratic primary, filed a class-action lawsuit in federal court on behalf of all similarly situated black voters in the city of Mobile. The at-large system used for electing members of the city commission, he alleged, had the effect of diluting the voting strength of the black minority, in violation of the Fourteenth and Fifteenth Amendments to the Constitution.
By the time the case reached the Supreme Court in 1979, the four justices who had been elevated to the bench by Richard Nixon had been joined by another Republican appointee, John Paul Stevens, who was nominated by Gerald Ford in 1975 to replace the retiring William O. Douglas. And in a pair of cases decided in 1976 and 1977, it became abundantly clear how sympathetic an audience claims of racial discrimination would receive before the nation’s highest court.
First, in Washington v. Davis, the justices by a 7–2 vote rejected a challenge to the hiring procedures used by the Washington, D.C., police department. These included a verbal skills component that was disproportionately failed by black applicants. Then, less than a year later in Arlington Heights v. Metropolitan Housing Development Corp., a 5–3 majority concluded that a zoning ordinance in suburban Chicago that allowed for the construction of only single-family dwellings, pricing many of the city’s African American residents out of the neighborhood, also did not violate the Constitution.
The logic of the decisions was the same. Even though the challenged policies had a racially disparate impact—in essence, they could be shown to disproportionately affect or disadvantage minorities compared with whites—this was perfectly legal absent clear and convincing evidence of discriminatory purpose or intent. The rulings effectively sounded the death knell for Bolden’s class-action suit against the City of Mobile.
The Supreme Court held initial oral arguments in Mobile v. Bolden in March 1979. Joining the side of the civil rights attorneys representing the class-action plaintiffs were lawyers from the U.S. Department of Justice, including Deputy Assistant Attorney General James P. Turner, who represented the government at oral argument. Even with the combined might of the Justice Department and the NAACP in their corner, the plaintiffs immediately faced a skeptical audience from the nine justices on the high court. Representing the City of Mobile was Charles Rhyne, coincidentally the same attorney who had argued on behalf of Tennessee seventeen years earlier in Baker v. Carr. And after failing to reach a consensus during their post-argument deliberations, the Court scheduled a second set of hearings for later that same year.
There is a small but diligent cottage industry of political scientists and legal scholars who have built careers on analyzing the effect of events that occur during oral argument on the eventual outcome of Supreme Court cases. Among their findings: the attorney who is asked the most questions goes on to lose the case more often than not; the more the justices attempt to derail an advocate’s focus on the core issues by bringing up threshold procedural questions, the greater the likelihood of an adverse ruling; and the more times the transcript indicates that laughter occurred in the courtroom during a lawyer’s presentation—most often in response to a quip by one of the justices—the greater the probability that the side on the receiving end of that laughter is headed for defeat.
For those reading the tea leaves during the second round of oral arguments in Mobile v. Bolden in October 1979, the writing certainly must have appeared to be on the wall. Charles Rhyne delivers an opening monologue that runs for almost thirteen pages of the transcript before his first interruption for a question from the bench, and faces only fourteen questions in total. The unfortunate plaintiffs’ attorney, James Blacksher, makes it less than a page into his presentation before the circular firing squad of questioning begins. He is peppered by no fewer than sixty questions from the justices during his thirty minutes of advocacy. And while he performs admirably amid the barrage—the case notes of Justice Harry Blackmun, who rated the quality of the attorneys appearing before the Court on an 8-point scale, reveal that he graded Blacksher as a 6, the same rating assigned to Rhyne, and one better than the 5 he gave Turner, who managed to spit out only nine words before his first interruption for questioning—it appeared that the Court was finally ready to make up its mind.
On April 22, 1980, the justices released their decision, ruling 6–3 that “action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose.” The opinion was written by Justice Potter Stewart, by then the longest-serving member of the bench, having been nominated by President Dwight Eisenhower in 1958. Stewart had dissented in the landmark “one person, one vote” ruling in Wesberry v. Sanders in 1964. “Disproportionate effects alone are insufficient to establish a claim of unconstitutional racial vote dilution,” he concluded. “Only if there is purposeful discrimination can there be a violation.” Joining him in the majority were the four Nixon appointees, Rehnquist, Burger, Blackmun, and Powell, along with the Ford appointee, John Paul Stevens.
Only the three liberal justices dissented. All four of the “pragmatic” centrists, the swing votes on the Court at the time, sided with Mobile. “The American ideal of political equality, conceived in the earliest days of our colonial existence and fostered by the egalitarian language of the Declaration of Independence, could not forever tolerate the limitation of the right to vote to white propertied males,” wrote Justice Thurgood Marshall, the first African American in the nation’s history to sit on its highest court. “The Court’s decision today is in a different spirit.” But the story, it turns out, was not quite over, either for the class-action plaintiffs from Mobile or for the broader fight against discriminatory racial gerrymandering.
In their ruling, the justices remanded the case back to the lower court for further proceedings before the U.S. district judge Thomas Virgil Pittman. And before a new trial could even be held, a smoking gun emerged that proved the existence of discriminatory intent beyond any reasonable doubt. It came in the form of a 1909 letter to the Alabama legislature, during the debates over the home rule bill that had eventually passed in 1911. It was written by Mobile’s former state senator, U.S. representative, and president of the Alabama Bar Association, Frederick G. Bromberg.
“In this letter to the Mobile legislative delegation,” wrote Judge Pittman, “Mr. Bromberg was expressing support for a pending bill to amend the Alabama Constitution explicitly to outlaw black office-holding.” And his support was not subtle, couched in racially coded language, or difficult to decipher. “Respectfully now recall to your mind that portion of my address,” Bromberg mused, “which refers to the expediency of amending the state constitution so as to exclude negroes from holding elective offices in this state. We have always, as you know, falsely pretended that our main purpose was to exclude the ignorant vote, when, in fact, we were trying to exclude, not the ignorant vote, but the negro vote.”
And lest there be any lingering traces of doubt regarding his intentions, coming as they did against the background of a series of lynchings that had occurred in Mobile between 1906 and 1909, Bromberg went on to hammer home the necessity of acting quickly. “The masses of the colored race are indifferent to the right to vote and still more indifferent to the right to hold office,” he concluded. “By adopting remedial measures now we shall cause no discontent, because of the present apathy of our colored citizens.” Case closed.
In April 1982, Judge Pittman issued his order, finding that the at-large system used to elect members of the Mobile City Commission unconstitutionally discriminated against its black residents, even under the stricter burden of proof now required by the Supreme Court. Rather than appeal the ruling, the city agreed to a settlement. In the next election, the commission would be replaced by a seven-member city council elected from single-member districts. In that election, held in 1985, three black candidates won their races, becoming the first African Americans to serve as elected representatives in Mobile since Reconstruction. Two decades later, Sam Jones, a U.S. Navy veteran who had served under the command of John McCain on the aircraft carrier USS Forrestal, was elected as the first African American mayor in Mobile’s history.
The backlash against the Court’s decision in Mobile v. Bolden was swift. “Justice Stewart’s plurality opinion was subjected to perhaps the most vociferous protest of any Supreme Court civil rights opinion since Brown,” wrote the historian J. Morgan Kousser in his book Colorblind Injustice. Criticism of the justices poured forth from the ACLU, the NAACP, and numerous other civil rights advocacy groups. The Washington Post described the ruling as a “major defeat for blacks and other minorities fighting electoral schemes that exclude them from office.” The New York Times labeled it “the biggest step backward in civil rights to come from the Nixon Court.” The legal community also pushed back, with the law professor Avi Soifer characterizing it as requiring an “overwhelming demonstration of the most blatant form of discriminatory motive,…proof far stronger than the standard of causation generally used in the common law,…proof akin to that required in a criminal context.” The ACLU attorney Laughlin McDonald put it even more bluntly: “Nothing short of a body buried in a shallow grave will meet the City of Mobile test.”
And on Capitol Hill, momentum began to build behind a push for congressional action to provide greater protection for the voting rights of minority citizens. The Voting Rights Act of 1965 had contained its own provisions attempting to outlaw racial gerrymandering and vote dilution, provisions that the Supreme Court had interpreted as being identical to those also found in the Fourteenth and Fifteenth Amendments to the Constitution. Certain sections of the act, most notably those requiring covered states to receive advance approval from either the Justice Department or the federal courts, known as preclearance, before making any changes to their election regulations, had been set to expire in 1970. Recognizing that more still needed to be done to combat the problem of racial discrimination in voting, Congress extended those provisions for another five years in 1970, and for an additional seven years in 1975. By the time the Court decided Mobile v. Bolden in 1980, the deadline for renewal was again approaching.
As debates over what form a new extension might take began to ramp up in the committees and subcommittees of the House and Senate, the NAACP organized an unprecedented lobbying campaign. Known as Operation Network, it deluged the offices of representatives and senators with phone calls, letters, and telegrams. Their message was a simple one. Merely renewing the existing provisions for an additional period of time was no longer sufficient. Congress must take proactive steps to amend the legislation to provide greater protection against vote dilution. The intent test that the Court had imposed in Mobile v. Bolden needed to be replaced with an effects test that made it easier for aggrieved parties to bring legal challenges.
After seven weeks of hearings in which more than a hundred witnesses testified, the vast majority in support of the NAACP’s position, Congress finally relented. The legislation that emerged was, according to the report submitted by the Senate Judiciary Committee, “designed to restore the legal standard that governed discrimination cases prior to the Supreme Court’s decision in Bolden.” “The intent test focuses on the wrong question,” the committee alleged, “and places an unacceptable burden upon plaintiffs in voting discrimination cases.”
These 1982 amendments to the Voting Rights Act—which in addition to modifying the vote dilution test extended the legislation as a whole for another ten years—passed the House on a 389–24 vote and then the Senate by a similarly lopsided 85–8 margin. President Ronald Reagan, after initially opposing a new effects test, and then backtracking after the momentum against that position on the Hill became overwhelming, signed it into law on June 29, 1982.
The legislation was a stunning rebuke to the high court, effectively reversing their decision in Mobile only two years after it had been issued. It also unleashed a deluge of litigation against states’ use of at-large elections, multimember districts, and other racial gerrymandering techniques that had the effect of reducing the strength of the minority vote. In the first of these cases to reach the Supreme Court, Thornburg v. Gingles, the justices ruled unanimously in 1986 that the multimember districting system used to elect members of the North Carolina General Assembly violated the newly amended Voting Rights Act.
Justice Brennan’s majority opinion noted that, “from 1971 to 1982, there were, at any given time, only two-to-four blacks in the 120-member House of Representatives—that is, only 1.6% to 3.3% of House members were black. From 1975 to 1983, there were, at any one time, only one or two blacks in the 50-member State Senate—that is, only 2% to 4% of State Senators were black. By contrast, at the time of the District Court’s opinion, blacks constituted about 22.4% of the total state population.”
Under what became known as the “totality of circumstances test,” whenever a redistricting plan diminishes the ability of a sufficiently large and geographically compact minority group to elect candidates of its choice, that plan must be invalidated. The results were dramatic. In 1970, there were only fifteen hundred black elected officials in the entire United States. By 1995, that number was more than eight thousand. The number of Hispanic and Latino elected officials doubled within a twenty-year period, from three thousand in 1984 to six thousand in 2014. The promise of the Voting Rights Act of 1965, and the Fifteenth Amendment a century before it, appeared to finally, albeit belatedly, be realized.
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But right as the problem of racial gerrymandering appeared to have found its solution—although as chapter 11 discusses, there’s more to that story as well—those bringing legal challenges to some of the most egregious partisan gerrymanders were about to receive a similar cold shoulder from the Supreme Court. On the same day that they released their decision in Thornburg v. Gingles, the justices also handed down another ruling, in a case involving a constitutional challenge to the gerrymandering of the Indiana state legislature. The confusing hodgepodge of opinions that resulted would lead the federal judiciary inexorably back into the tangled clutches of the political thicket. Three decades of litigation later, the nation was no closer to a solution to partisan gerrymandering by 2016 than it had been in 1986. And in the meantime, emboldened by the “one person, one vote” mandate that now required all fifty states to redraw their districts every ten years, the modern gerrymander began to slowly spread its wings.