"The past is never dead. It's not even past."

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For This Judge, the Civil Rights Movement Isn't History

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Judges aren't history teachers. Or are they?

That question lies at the heart of a deep left-right split over voting-rights laws. One side says that changes in state voting requirements should be assessed in the context of the American civil rights struggle. The other side says that history is irrelevant to the legality of modern voting practices.

QuickTake Voting Rights

It's an emotional issue, exposed last week in an unusual dissent by a 94-year-old African-American federal appeals court judge in Ohio. The judge, Damon Keith, gave readers a history lesson complete with photographs and biographies of 36 men and women killed in pursuit of civil rights between 1955 and 1968.

It wasn’t enough to convince his colleagues, who upheld changes to Ohio voting rules that made it harder for poll workers to assist voters and reduced the number of days after an election for voters to provide identification or correct errors in their absentee ballots.

The facts of the case bear some resemblance to a number of other voting rights cases that have been decided recently by appeals courts in the run-up to the presidential election. Typically, the cases involve state laws that roll back aspects of existing voting practices that were designed to make it easier to vote.

The Ohio laws challenged in the case had three effects. The first law required was a requirement that envelopes containing absentee ballots include addresses and birth dates that precisely matched those on the voter rolls. The federal district court struck down the law. The U.S. Court of Appeals for the 6th Circuit agreed, holding that requiring an exact fit imposed an onerous burden for some voters and thus violated the equal protection clause of the Constitution.

But the Ohio laws also had two other effects that the majority considered permissible. State law previously gave voters 10 days to correct mistakes on absentee ballots. The new law narrowed the 10-day window to seven days. It also barred poll workers from providing “assistance” to voters who aren't blind, disabled or illiterate. The district court thought these provisions disproportionately affected minority voters. But the 6th Circuit panel said there was “scant evidence” that minority voters use absentee ballots more than non-minority voters do, which meant the laws didn’t violate the Voting Rights Act. And it also held that the laws did not violate the equal protection requirement by imposing an undue burden on the right to vote.

Keith disagreed -- in a striking way. The framework for his dissenting opinion was an assertion that “the majority’s actions must be viewed in full light of their historical context.” To provide that context, he gave photographs and capsule biographies of people he called “martyrs” of the fight for equal protection and the right to vote. They included famous civil rights activists who were killed, such as Medgar Evers, Martin Luther King and the troika of Michael Schwerner, James Chaney and Andrew Goodman -- and also less conspicuous figures like a French reporter killed while covering the civil rights struggle and a white postal worker on a one-man civil rights march.

Even more remarkable than the history lesson was Keith’s assertion that the majority was colluding in the suppression of African-American voting.

“The utter brutality of white supremacy in its efforts to disenfranchise persons of color is the foundation for the tragedy that is the majority’s effort to roll back the progress of history,” he wrote, adding, “I will not forget.” It’s extremely unusual for a judge to criticize other judges not simply for being wrong, but for participating in wrongdoing.

The majority defended itself by saying that the history was irrelevant. “We deeply respect the dissent’s recounting of important parts of the racial history of our country,” wrote Judge Danny Boggs. But he concluded that the grim history of discrimination should not by itself "determine the outcome of today’s litigation over voting practices and methods.”

The question of how to think about history really does dictate the outcome of the case. If you see history as of secondary importance, then the Ohio changes that the court upheld can be seen as relatively trivial. But if you see every effort to limit access to voting as a continuation of the past and present history of suppressing African-American votes, what would otherwise appear minor suddenly looms large indeed.

Something structurally similar can be seen in the Supreme Court’s 2013 landmark decision striking down key provisions of the Voting Rights Act, which was enacted in 1965 and amended at various intervals up to 2006. The conservative majority thought that the history of voting rights violations on which Congress relied in renewing the law was too outdated to provide the constitutional basis for the enactment. The liberal dissenters argued that there was contemporary evidence of ongoing discrimination that was part of an unbroken historical thread of racial discrimination.

Keith, who served on the Michigan civil rights commission in the 1960s and was appointed to the bench by President Lyndon Johnson, is himself a living part of the history of civil rights. To paraphrase William Faulkner, for him, the civil rights past isn’t dead -- it isn’t even past. No other federal judge is better suited to express the view that current voting rights cases must be understood in the light of past discrimination.

Photographs and biographies may help us remember. But a younger generation won’t see it that way forever.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net