Greenberg Statement on Lockett v. Ohio and Bell v. Ohio Capital Rulings

    No. 12-96

I n  T h e

Supreme Court of tfje ©ntteb States

S h e l b y  C o u n t y , A l a b a m a ,
Petitioner,

v.
E r ic  H . H o l d e r , J r ., A t t o r n e y  G e n e r a l , etal.,

Respondents

On Writ of Certiorari to the 
United States Court of Appeals 

for the District of Columbia Circuit

BRIEF FOR THE
VETERANS OF THE MISSISSIPPI CIVIL 

RIGHTS MOVEMENT AS AMICUS CURIAE 
IN SUPPORT OF RESPONDENTS AND 

INTERVENOR-RESPONDENTS

P e g g y  C o o p e r  D a v is  
N e w  Y o r k  U n iv e r s it y  

S c h o o l  o f  L a w  
Experiential Learning Lab 
40 Washington Square South 
New York, NY 10012 
(212) 998-6465

A d e r s o n  B. F r a n c o is  
Counsel of Record 

H o w a r d  U n iv e r s it y  
S c h o o l  o f  L a w  
C iv il  R ig h t s  C l in ic  

2900 Van Ness Street NW 
Washington DC 2008 
(202) 806-8065 
afrancois@law.howard.edu

W ilson-Epes Printing Co ., Inc . -  (202) 789-0096 -  W ashington , D. C. 20002

mailto:afrancois@law.howard.edu


TABLE OF CONTENTS
Page

TABLE OF CONTENTS.....................................  i
TABLE OF CITED AUTHORITIES................... ii
INTEREST OF AMICUS CURIAE..................... 1
SUMMARY OF ARGUMENT.............................  2
ARGUMENT........................................................  4

I. E v e r y  P e r s o n  A n d  E v e r y  G r o u p  W i t h ­
in  O u r  N a t i o n a l  F a m i l y  D e s e r v e s  
F e d e r a l  P r o t e c t i o n  A g a i n s t  T h e  
S u p p r e s s i o n  O f  P o l i t i c a l  V o i c e ...............  4

II. H e a l t h y  F e d e r a l i s m  R e q u i r e s  A
D e l i c a t e  B a l a n c e  o f  P o w e r s  R a t h e r  
T h a n  R e f l e x i v e  O p p o s i t i o n  T o  
F e d e r a l  O v e r s i g h t .............................................  6

III. T h e  N e e d  F o r  F e d e r a l  P r o t e c t i o n

A g a i n s t  V o t e r  S u p p r e s s i o n  I s N e i t h e r  
T e m p o r a r y  N o r  E x t r a o r d i n a r y  B u t  
N e c e s s a r y  T o  G u a r d  A g a i n s t  T h e  
P e r p e t u a l  T e n d e n c y  O f  “P o l i t i c a l  
F a c t i o n s ” T o  E x c l u d e  R e a l  O r  
P e r c e i v e d  “ M i n o r i t i e s ” F r o m  O u r

N a t i o n a l  P o l i t i c a l  F a m i l y ........................... 9

CONCLUSION........................................................  13
APPENDIX

Description of Amicus Curiae.............................. la

(i)



11

TABLE OF CITED AUTHORITIES
CASES Page(s)

Boynton v. Virginia, 364 U.S. 459 (I960).... 5
Brown v. Bd. ofEduc., 347 U.S. 483 (1953) 5
Dred Scott v. Sanford, 60 U.S. 393 (1856)... 2, 3, 4
Ex parte Virginia, 100 U.S. 339 (1879)........ 2, 5
Garner u. Louisiana, 368 U.S. 157 (1961)... 5
Giles v. Harris, 189 U.S. 475 (1903)............  11
Giles v. Teasley, 193 U.S. 146 (1904)...........  11
Gomillion v. Lightfoot, 364 U.S. 339 (I960)... 12, 13
Grovey v. Townsend, 295 U.S. 45 (1935)...  11
Guinn v. United States, 238 U.S. 355 

(1915)................................................................... 12, 13
Lane v. Wilson, 307 U.S. 268, (1930)................  12, 13
Lassiter v. Northampton Cnty. Bd. o f  

Elections, 360 U.S. 45 (1959)..........................  11, 12
Love v. Griffith, 266 U.S. 32 (1924).............  11
Loving v. Virginia, 388 U.S. 1 (1967)........  5
Louisiana v. United States, 380 U.S. 145

(1965).............................................................  5
Meyer v. Nebraska, 262 U.S. 390 (1923)...... 5
Myers v. Anderson, 238 U.S. 368 (1915).....  12, 13
Neal v. Delaware, 103 U.S. 370 (1880)........ 12, 13
Nixon v. Herndon, 273 U.S. 536, 541

(1927)................................................................... 12, 13
Nixon v. Condon, 286 U.S. 73, 82 (1932)....  12, 13
Peterson v. City o f Greenville, 373 U.S. 244 

(1963).............................................................  5



1X1

Page(s)
Pierce v. Society o f  Sisters, 262 U.S. 510 

(1925)..................................................  5
Smith v. Allwright, 321 U.S. 649 (1944)....  12, 13
Terry v. Adams, 345 U.S 461, 476 (1953).... 12, 13
United States v. Cruikshank, 92 U.S. 542 

(1876)..................................................  11
United States v. Mississippi, 380 U.S. 128 

(1965)..................................................  5
United States v. Price, 383 U.S. 787 (1966). 5
United States v. Reese, 92 U.S. 214 (1875).. 11

OTHER AUTHORITIES
Alfred Lord Tennyson, Ulysses, in The 

Poems o f Tennyson, 560 (Christopher 
Ricks, ed., Longmans, Green & Co. Ltd.
1969)..............................................................  14

Debates of the Federal Convention of 1787
(Notes of James M adison).........................  7

Eric Foner, Reconstruction: America’s Un­
finished Revolution: 1863-1877 (1988)....  10

Eric Foner, Forever Free: The Story o f  
Emancipation and Reconstruction (2006) 10

Gabriel J. Chin & Randy Wagner, The 
Tyranny o f the Minority: Jim Crow and 
the Counter-Majority Difficulty, 43 Harv. 
C.R.-C.L.L. Rev. 65 (2008).........................  10

TABLE OF CITED AUTHORITIES



IV

Page(s)
J. Morgan Kousser, Colorblind Injustice: 

Minority Voting Rights and the Undoing 
of the Second Reconstruction 322 (1999).. 11

James Baldwin, They Can’t Turn Back, 
collected in The Price of the Ticket, 228 
(St. Martin’s Press 1985).......................  14

Janet Malcolm, The Crime of Sheila 
McGoughb (New York: Alfred A. Knoof,
1999)...........................................................  6

Peggy Cooper Davis, Contested Images of 
Family Values: The Role of the State, 107 
Harv. L. Rev. 1348 (1993-94).................... 10

Robert M. Goldman, Reconstruction and 
Black Suffrage: Losing the Vote in Reese 
and Cruishank (University Press 2011).. 12

The Federalist Papers No. 9 (Alexander
Hamilton)................................................... 7

The Federalist Papers No. 10 (James 
Madison)..................................................... 9

The Federalist Papers No. 45 (James 
Madison)................................................. 3, 6, 7, 8

The Federalist Papers No. 84 (Alexander
Hamilton)................................................... 7

William Gillette, Retreat From Reconstruc­
tion: 1869-1879 (1979)..............................  11

TABLE OF CITED AUTHORITIES



INTEREST OF AMICUS CURIAE
Amicus Curiae, Veterans of the Mississippi Civil 

Rights Movement, Inc. (“Veterans”), is a Not-For- 
Profit organization with the mission of documenting 
and telling the stories of Civil Rights Veterans to 
empower the next generation to continue the quest 
for freedom, justice and equality.1 We are part of a 
long and continuing campaign to fulfill the promise 
of the 13th 14th and 15th amendments to our 
Constitution that all the people of the United States 
would be full partners in our national democracy and 
given the respect and political voice that democratic 
citizens are due. Years ago, before passage of the 
Voting Rights Act of 1965, when many of us were 
barely out of our teens, we worked through such 
institutions as the Student Nonviolent Coordinating 
Committee (SNCC), the Congress for Racial Equality 
(CORE), the National Organization for the Advance­
ment of Colored People (NAACP), the Council of 
Federated Organizations (COFO), the Mississippi 
Freedom Democratic Party (MFDP), and Freedom 
Schools throughout the Deep South to help register 
disenfranchised African-American citizens in Missis­
sippi and other Southern states. The work was 
difficult and dangerous and some of our number were 
assassinated trying to carry it out, but it helped bring 
about enactment of the Voting Rights Act.

1 Pursuant to Supreme Court Rule 37, this brief is filed with 
the written consent o f all parties. The parties’ consent letters 
are on file with the Court. This brief has not been authored, 
either in whole or in part, by counsel for any party, and no 
person or entity, other than amicus curiae or their counsel has 
made a monetary contribution to the preparation or submission 
o f this brief.



Our stories as veterans of the movement are as 
diverse as our races, religions, economic back­
grounds, and ancestral origins. Some of our 
ancestors were slaves and sharecroppers.2 Some of 
our ancestors were immigrants escaping oppression 
elsewhere in the world. Some of us are children of 
the Deep South whose lives were touched by 
lynchings and other forms of racial terror. Some of 
us traveled to the Deep South as students inspired by 
civil rights protesters’ brave claims of the right to 
occupy public spaces, to register and vote and to take 
their civic roles as people of the United States. The 
common thread that runs through our lives is a 
desire to “provide leadership in the ongoing pursuit of 
human rights.” In that spirit we urge the Court to 
affirm the decision of the United States Court of 
Appeals for the District of Columbia Circuit and 
uphold the constitutionality of Section 5 of the Voting 
Rights Act of 1965.

SUMMARY OF ARGUMENT
The original framers of our Constitution committed 

federal power to protect “ [t]he right to traffic in 
[human property! as if it were an ordinary article of 
merchandise.” Dred Scott v. Sanford, 60 U.S. 393, 
451-52 1856). We fought the Civil War to transform 
the federal government from a guardian of human 
property to a protector of human freedom. See Ex 
parte Virginia, 100 U.S. 339, 344-45 (1879). Dred

2

2 Selected biographical sketches o f the veterans are repro­
duced in the Appendix at the conclusion o f this brief and are 
available in the form o f video recordings at h ttp ://w w w l. 
law.nyu.edu/davisp/neglectedvoices/index.html. A  complete 
archive o f their stories stories have been collected in an Oral 
History Project at http://www.mscivilrightsveterans.com/oral- 
history.htm l.

http://wwwl
http://www.mscivilrightsveterans.com/oral-history.html
http://www.mscivilrightsveterans.com/oral-history.html


Scott’s exclusionary description of our national family 
was fully repudiated by the Civil War Amendments. 
Never in our reconstructed nation will people of 
African descent—or people of any description—stand 
without rights that the Nation is bound to respect 
and enforce.

In a vast, complex and diverse nation, it is 
inevitable that factions will seek to suppress the 
political and civic expression of groups that have—or 
appear to have—opposing interests. Since the Civil 
War, the federal government has been empowered to 
counter this dangerous tendency and assure all 
Americans full access to the political process.

Petitioners and its supporting amici argue that 
for the sake of state sovereignty, this Court should 
retreat from its repeated constitutional endorsements 
of the Voting Rights Act of 1965 and its longstanding 
role in protecting voting rights for all Americans. The 
Court has appropriately struggled to honor both its 
function in policing the boundaries of federal power 
and its fundamental duty as guarantor of the dignity 
and public roles of national citizens. Petitioner’s 
claims elevate deference to states’ rights over careful 
respect for the role of the federal government in 
protecting the dignity and political voice of all 
Americans. We did not spill “the precious blood” of 
our people, nor waste “the hard-earned substance of 
millions” just so that “the governments of the 
individual States might enjoy a certain extent of 
power, and be arrayed with certain dignities and 
attributes of sovereignty.” The Federalist No. 45, at 
289 (James Madison) (Clinton Rossiter ed., 1961). 
We did so in the cause of human freedom.

3



ARGUMENT
I. Every Person And Every Group Within 

Our National Family Deserves Federal 
Protection Against The Suppression Of 
Political Voice

In Dred Scott v. Sandford, this Court ruled that 
Congress lacked the power to outlaw slavery 
and declared that “the Constitution brought into 
existence” “a political family,” from which African 
Americans were excluded. 60 U.S. 393, 406 (1857).

The Reconstruction Amendments repudiated Dred 
Scott’s doctrine of an exclusive political family. These 
Amendments broadened our definition of the Ameri­
can political family, deepened our understanding of 
federal citizenship, and changed the relationship 
between the federal and state governments. In this 
reconstructed national family every person, and 
every group, has the right to participate fully in civic 
and political life. Congress has the power—and the 
duty—to protect these basic rights and liberties.

Taken as a whole, the Reconstruction Amendments 
opened the doors of political and civic life to all 
the Nation’s people and made the federal judiciary 
a guardian of freedom. The story of post- 
Reconstruction jurisprudence is the story of the 
federal government in general and this Court in 
particular standing time and time again to protect 
the rights of a free, democratic people. Notwith­
standing its respect for state sovereignty, this Court 
has struck down state laws that posed undue

4



infringements on liberty (Meyer v. Nebraska, 262 
U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 
510 (1925)); compelled social subjugation (Brown v. 
Board of Education, 347 U.S. 483 (1954)); infringed 
an individual’s right of intimate association (Loving 
v. Virginia, 388 U.S. 1 (1967)), or prevented full 
access to the democratic process (Louisiana v. United 
States, 380 U.S. 145 (1965); United States v. 
Mississippi, 380 U.S. 128 (1965)). Three years after 
Brown, when nine children attempted to exercise 
their right to equal public education in Little Rock 
Central High School, and when the Governor of 
Arkansas deployed the Arkansas National Guard 
to block the schoolhouse door, it was the federal 
government that escorted them to school. In Boynton 
v. Virginia, 364 U.S. 459 (1960), Peterson v. City of 
Greenville, 373 U.S. (1963), and Garner v. Louisiana, 
368 U.S. 157 (1961), this Court protected our rights 
as free citizens to be accommodated in public spaces 
without fear of eviction and prosecution by state 
officials. In United States v. Price, 383 U.S. 787 
(1966), this Court affirmed the federal government’s 
power to prosecute Mississippi men who murdered 
three of our number for exercising their rights under 
the Fourteenth and Fifteenth Amendments.

These events merely confirmed what Justice 
Strong long ago explained in Ex parte Virginia, that 
the Reconstruction Amendments “were intended to 
be, what they really are, limitations of the power of 
the States and enlargements of the power of 
Congress.” 100 U.S. 339, 345 (1879).

A central question in this case is whether Section 5 
of the Voting Rights Act gives the federal government 
inordinate power vis a vis its state and local con­
stituent governments. We who have fought to define

5



6
and strengthen our rights as citizens of the Nation 
urge the utmost care in deciding this important 
question of state versus federal rights.

II. Healthy Federalism Requires A Delicate 
Balance Of Powers Rather Than Reflex­
ive Opposition To Federal Oversight

In the mythology of our constitutional origin, the 
Framers, having cast off Britain’s oppressive 
monarchy, were wary of the tyranny of centralized 
power and thus saw the federal government as a 
necessary evil—an ever-present threat to liberty that, 
if not restrained, would trample the rights and 
liberties of the People. But to understand federalism 
as a principle that begins and ends with limiting 
federal power sacrifices complicated truth for decep­
tive coherence.3 The messy truth is not simply that 
powers which ‘“concern the lives, liberties and prop­
erties of the people’ [should be] held by governments 
more local and more accountable than a distant 
federal bureaucracy.” The Federalist No. 45, at 293 
(J. Madison). American federalism properly under­
stood is an on-going effort to reconcile the ambiguous 
and conflicting principles upon which this Nation was 
founded. It is an effort to achieve the strength of 
unity without sacrificing liberty and difference and to 
turn our collective and diversified strengths to the 
service of the People.

The Federalist Papers, which often serve as the 
authoritative source for the narrative of limited 
federal power, were published at a time when leaders 
of the early Republic struggled to assert an identity 
distinct from the British system they had so recently

3 Janet Malcolm, The Crime o f  Sheila M cGough, 3-4 (New 
York: Alfred A. Knopf, 1999).



7
rejected. These documents were never intended to be 
the definitive expression of the Framers’ original 
intent, but were instead part of an effort to garner 
political support for constitutional ratification by 
quelling anti-federalist fears that the Congress would 
be an oligarchy and the President a king. See 
Federalist Papers No. 84, A. Hamilton; Debates of the 
Federal Convention of 1787, Notes of J. Madison. But 
even though they are political discourse rather than 
doctrine, the Federalist Papers show plainly that 
the Framers did not believe that limiting Federal 
power and broadening State power were invariably 
necessary to protect the interests of the People.

Alexander Hamilton’s support of strong central 
government is documented in his contributions to the 
Federalist Papers and to the Federal Convention of 
1787, where he proposed an exclusively national 
government. Id. Specifically, Hamilton believed that 
“there is no absolute rule on the subject” of balancing 
federal and state power, and that efforts to prove 
such a rule were “the cause of incurable disorder and 
imbecility in the government.” Federalist Papers No. 
9 at 53, (A. Hamilton).

James Madison, for his part, was chiefly concerned 
with the liberty of the People. As he explained: 
“Were the Union itself inconsistent with the public 
happiness, it would be, Abolish the Union. In like 
manner, as far as the sovereignty of the States 
cannot be reconciled to the happiness of the people, 
the voice of every good citizen must be, Let the 
former be sacrificed to the latter.” Federalist Papers 
No. 45, at 229 (J. Madison). He therefore expressed 
dismay that the sovereignty of the States would be 
seen as an end in itself:



Was, then, the American Revolution effected, 
was the American Confederacy formed, 
was the precious blood of thousands spilt, 
and the hard-earned substance of millions 
lavished, not that the people of America 
should enjoy peace, liberty, and safety, but 
that the government of the individual States, 
that particular municipal establishments, 
might enjoy a certain extent of power, and be 
arrayed with certain dignities and attributes 
of sovereignty? . . .  It is too early for 
politicians to presume on our forgetting that 
the public good, the real welfare of the great 
body of the people, is the supreme object to 
be pursued; and that no form of government 
whatever has any other value than as it may 
be fitted for the attainment of this object.

Federalist Papers No. 45, at 288-89 (J. Madison).
The notion that state sovereignty is a virtue for 

its own sake, even when it prevents the federal 
government from acting in the defense of liberty, is 
inconsistent with our nation’s story. The Founders 
may have had reason to fear concentrated federal 
power, but they were equally mindful of the dangers 
of a too assiduous protection of states’ rights. 
Thus, where, as here, Congress makes a reasonable 
judgment that it is acting in defense of individual 
liberty and equality it should fall to those who would 
challenge Congressional authority to explain why 
and how limiting federal power will serve the cause 
of human liberty.

8



III. The Need For Federal Protection 
Against Voter Suppression Is Neither 
Temporary Nor Extraordinary But 
Necessary To Guard Against The Per­
petual Tendency Of “Political Factions” 
To Exclude Real Or Perceived “Minor­
ities” From Our National Political 
Family

The founders of this Republic would have shared 
our understanding, as civil rights activists, of the 
need for federal protection of meaningful political 
participation by all members of the national family. 
James Madison identified the “propensity” of demo­
cratic governments to the “dangerous vice” of political 
factions, and the problem that “measures are too 
often decided, not according to the rules of justice and 
the rights of the minor party, but by the superior 
force of an interested and overbearing majority.” 
The Federalist No. 10, at 49 (James Madison). These 
problems, Madison contended, are inherent in 
republican government, as they are “sown in the 
nature of man.” Id. at 50, 54. Madison’s solution was 
a republican form of government in which “[tlhe 
influence of factious leaders may kindle a flame 
within their particular States, but will be unable to 
spread a general conflagration through the other 
States.” Id. at 54. The sober judgment of a nation 
must at times stand against more selfish local 
passions. The civil rights movement has consistently 
relied—and insisted—on national protections against 
factious suppression of political participation by any 
group within the American family.

For a brief shining moment following the con­
clusion of the Civil War, the federal government 
assured that African-American citizens of former

9



confederate states would have full access to the 
political process. See generally Eric Foner, Recon­
struction: America’s Unfinished Revolution: 1863- 
1877 (1988). “The Census of 1870 showed that African 
Americans made up a majority of the population in 
three of the former Confederate states, Louisiana, 
Mississippi, and South Carolina. They were over 40% 
in Alabama, Florida, Georgia, and Virginia; and 
more than a third in North Carolina. In no former 
confederate state were African Americans less than a 
quarter of the population.” See Gabriel J. Chin & 
Randy Wagner, The Tyranny of the Minority: Jim 
Crow and the Counter-Majoritarian Difficulty, 43 
Harv. C.R.-C.L. L. Rev. 65, 89 (2008). This translated 
into political power: In states such as Louisiana, 
Mississippi, and South Carolina, African-Americans 
outnumbered whites in voter registration. Id. 
In others, such as Alabama and Georgia, African- 
Americans constituted nearly forty percent of 
registered voters. Id.; see also Peggy Cooper Davis, 
Contested Images of Family Values: The Role of the 
State, 107 Harv. L. Rev. 1348, 1357-58 (1993-94). As 
Professor Foner, the foremost historian on Recon­
struction, has shown, “[b]y the early 1870s, biracial 
democratic government, something unknown in 
American history, was functioning effectively in 
many parts of the South, and men only recently 
released from bondage were exercising genuine 
political power.” Eric Foner, Forever Free: The Story 
of Emancipation and Reconstruction 129 (2006).

This ended with the withdrawal of federal power. 
Between 1890 and 1908, every former confederate 
state adopted a number of voter suppression 
methods, including poll taxes, literacy tests, 
property requirements for municipal voters, and 
outright violence by the Ku Klux Klan and other

10



vigilante groups. See William Gillette, Retreat From 
Reconstruction: 1869-1879, xiii (1979). And, by 1880, 
blacks had been stripped of virtually all the state 
and federal political power they had achieved during 
Reconstruction. See J. Morgan Kousser, Colorblind 
Injustice: Minority Voting Rights and the Undoing of 
the Second Reconstruction 322 (1999).

In the face of post-Reconstruction hostility to uni­
versal franchise, this Court struggled between its 
legitimate role in policing the boundaries of federal 
power and its fundamental duty as guarantor of the 
dignity and public roles of national citizens.

At times, the Court has believed itself lacking 
in the requisite grant of constitutional or statutory 
power to stop what were plainly attempts by state 
officials to deny the political franchise to African- 
Americans. See e.g., United States v. Reese, 92 U.S. 
214, 218 (1875) (holding that Congress lacked the 
power under the Fifteenth Amendment to require 
state election officials to count the ballots of all 
qualified voters); United States v. Cruikshank, 92 
U.S. 542 (1876) (finding that the Fourteenth Amend­
ment did not provide federal authority to indict of a 
mob of private citizens for the killing of freedmen 
in the disputed 1872 Louisiana elections); Giles v. 
Harris, 189 U.S. 475 (1903) and Giles v. Teasley, 193 
U.S. 146 (1904) (upholding good character clauses); 
Love v. Griffith, 266 U.S. 32 (1924) and Grovey v. 
Townsend, 295 U.S. 45, 55 (1935) (declining to outlaw 
white primaries); Lassiter v. Northampton Cnty Bd.

11



of Elections, 360 U.S. 45, 51 (1959) (upholding the 
constitutionality of literacy tests).4

But at its best, in the years between Recon­
struction and passage of the Voting Rights Act of 
1965, this Court refused to permit claims of state 
sovereignty to trump demands for full national 
citizenship. Ten years after ratification of the Fif­
teenth Amendment, the Court made it clear that the 
Amendment rendered inoperative provisions in any 
existing state constitution that explicitly limited the 
right to vote to whites. Neal v. Delaware, 103 U.S. 
370 (1880). Then, little by little, and step by step, 
but inexorably and relentlessly, the Court cast aside 
state policies and practices designed “t o . thwart 
equality in the enjoyment of the right to vote by 
citizens of the United States regardless of race or 
color.” Thus, the court outlawed grandfather clauses 
and held state officials civilly liable for enforcing 
them, Guinn v. United States, 238 U.S. 355, 360 
(1915), Myers v. Anderson, 238 U.S. 368, 383 (1915), 
and Lane v. Wilson, 307 U.S. 268, 269 (1930); it 
invalidated de jure and de facto white primaries, see 
Nixon v. Herndon 273 U.S. 536, 541 (1927); Nixon v. 
Condon, 286 U.S. 73, 82 (1932), Smith v. Allwright, 
321 U.S. 649 (1944) and Terry v. Adams, 345 U.S 461, 
476 (1953); and it held racial gerrymandering un­
constitutional, Gomillion v. Lightfoot, 364 U.S. 339, 
341 (1960).

In those years, what the Court learned was that, 
as soon as it struck down one method of voter 
suppression, states would quickly respond with

12

1 See also generally  Robert M. Goldman, Reconstruction and 
Black Suffrage: Losing The Vote In Reese And Cruikshank 
(University Press o f Kansas 2001).



13
“schemes intended to emasculate constitutional pro­
visions or circumvent [the Court’s] constitutional 
decisions.” Harrison v. NAACP, 360 U.S. 167, 182 
(1959) (Douglas, J., dissenting). Decisions such as 
Neal v. Delaware, Guinn v. United States, Myers v. 
Anderson, Lane v. Wilson, Nixon v. Herndon, Nixon v. 
Condon, Smith v. Allwright, Terry v. Adams, and 
Gomillion v. Lightfoot, show, if nothing else, that this 
Court’s own precedent served as the jurisprudential 
justification for the Voting Rights Act. For if, as 
Chief Justice Roberts explained barely four years 
ago, the Voting Rights Act is grounded in a judgment 
by Congress that it needed to have preemptive 
measures “[rlather than continuing to depend on 
case-by-case litigation,” it was in no small part the 
work of this Court between 1915 and 1964 that 
provided the incontrovertible evidence that nothing 
short of a permanent federal presence would ever 
be a sufficient corrective to the “dangerous vice” of 
political factions.

CONCLUSION
The story of the Voting Rights Act of 1965 in 

general and Section 5 of the Act in particular is 
not, as petitioners would have it, an extraordinary 
departure and temporary diversion from federalism 
principles, requiring the Court, in the name of state 
sovereignty, to step back from its historic role in 
defending voting rights.

Rather, it is the story of Congress discharging its 
duties under its Reconstruction powers to protect the 
basic rights and liberties of every person and every 
group in our national family to participate fully in 
civic and political life. It is also the story of this 
Court’s continuing struggle to honor both its function 
in policing the boundaries of federal power and its



fundamental duty as guarantor of the dignity and 
public roles of national citizens.

And, not least of all, it is the story of young men 
and women who, in the teeth of violence and terror 
and sometimes at the price of their own lives, made 
sure our Nation would honor the dignity and political 
voice of all Americans. They were determined “to 
make [freedom] happen,” believing that “insofar as 
they can make it real for themselves, they will make 
it real for all of us.”5 Though today some may have 
been “made weak by time and fate,”6 these veterans 
and their work, past and present, remain vital 
testimony to the continuing need for the Voting 
Rights Act of 1965 and its Section 5 preclearance 
provisions.

14

P e g g y  C o o p e r  D a v is  
N e w  Y o r k  U n iv e r s it y  

S c h o o l  o f  L a w  
Experiential Learning Lab 
40 Washington Square South 
New York, NY 10012 
(212) 998-6465

Respectfully submitted,

A d e r s o n  B. F r a n c o is  
Counsel of Record 

H o w a r d  U n iv e r s it y  
S c h o o l  o f  L a w  
C iv il  R ig h t s  C l in ic  

2900 Van Ness Street NW 
Washington DC 2008 
(202) 806-8065 
afr ancois@law. howard. edu

February 1, 2013

James Baldwin, They C ant  Turn Back, collected in The 
Price o f  the Ticket 228 (St. M artin’s Press 1985).

6 Alfred Lord Tennyson, Ulysses, in The Poem s o f  Tennyson, 
560, 562-66 (Christopher Ricks ed., Longmans, Green & Co. Ltd. 
1969).



APPENDIX



APPENDIX
Description of Amicus Curiae

Amicus Curiae, the Veterans of the Mississippi 
Civil Rights Movement, is a large organization with 
a membership crossing state lines, and religious, 
educational, professional and economic backgrounds. 
Some of their stories have been collected in an Oral 
History Project at http://www.mscivilrightsveterans. 
com/oral-history.html, and http://wwwl.law.nyu.edu/ 
davisp/neglectedvoices/index.html. While a full ac­
counting of their membership cannot be usefully 
catalogued in this brief, the selected sample below is 
representative of the diversity of their membership, 
the sacrifices they made in helping all Americans 
gain meaningful access to the political process, and 
their continuing commitment to the cause of human 
freedom:

Hollis Watkins is the great-grandson of an African 
slave on his father’s side and a Choctaw Native 
American and White Jewish plantation owner on his 
mother’s side. Now the Chair of the Veterans, Mr. 
Watkins began his voting rights work as a seventeen- 
year old member of the youth chapter of the NAACP. 
At nineteen he became a Mississippi field secretary 
for SNCC with the responsibility of going door to door 
throughout the state to register African-Americans to 
vote. For that he was arrested and sent to work on a 
chain gang. He was then transferred to the State 
Penitentiary where he was locked in the maximum 
security death row unit. For singing freedom songs, 
he was placed in solitary confinement, a six by six 
foot concrete box called “the hole” where the only 
access to air was the small crack between the bottom 
of the door and the floor. A native of Mississippi, Mr. 
Watkins has lived in the state all his life and today

la

http://www.mscivilrightsveterans
http://wwwl.law.nyu.edu/


2a
continues to work on behalf for equal rights for all 
Americans.

Jesse Harris’ ancestors came from the Bahamas, 
where his grandfather worked on a plantation before 
immigrating to South Carolina, and Mississippi, 
where his grandmother grew up on a Choctaw 
Reservation. The year Harris turned seventeen, a 
local white mob lynched Mack Charles Parker, a 
twenty-three year old Black man, accused but not 
tried or convicted of sexually assaulting a white 
woman. Two years later, Harris joined the Freedom 
Rides when they arrived in Jackson, Mississippi. He 
was arrested and sent to the Mississippi State 
Penitentiary. There, he recalls, his education began. 
His cellmates were James Farmer, a co-founder of 
CORE, James Lawson, an early adherent of Gandhi 
and non-violent protest, and James Bevel, a member 
of SNCC. He remembers listening to and learning 
from these activists and, even though in prison, 
feeling for the first time in his life like a free man. 
On his release, he became a field secretary for SNCC, 
working on voter registration in Mississippi and 
organizing direct protests to desegregate public 
accommodations in Jackson, Mississippi.

Robert (Bob) Moses’ paternal grandparents, William 
Henry Moses and Julia Trent Moses, met while 
students at Virginia Seminary late in the 19th 
century. William was a former officer in General 
Robert E. Lee’s army of Northern Virginia who, in 
time, would become a Vice President of the National 
Baptist Convention and a supporter of Marcus 
Garvey. Moses’s maternal grandmother was raised in 
Richmond, Virginia, and traces her family to a slave 
plantation in Richmond where her grandfather 
appears as an item of property on the will of the



plantation owner. Moses was raised in Harlem. He 
attended public schools in New York and earned his 
Bachelor’s degree at Hamilton College in 1956, and 
his Master’s in Philosophy at Harvard University in 
1957. In 1958, Moses was working as a math teacher 
in New York when the sit-ins broke out in the Deep 
South. Fascinated, that April he visited Virginia 
to experience the sit-in movement first hand. He 
marched with Hampton students to Newport News 
and then worked in Harlem to gather support for 
Dr. Martin Luther King, Jr. Bayard Rustin, who 
eventually would organize the 1963 March on 
Washington, sent Moses to work with Ella Baker of 
SCLC in Atlanta. In the SCLC Atlanta office Moses 
discovered SNCC and began a SNCC scouting trip 
through Alabama, Mississippi and Louisiana. In 
Mississippi, Moses met Amzie Moore, president of 
the Cleveland, Mississippi NAACP, who aid out the 
concept of student-led voter registration organizing 
among Blacks of the Mississippi Delta. Moses spent 
the next four years working on the “SNCC/Amzie 
Moore” voter registration strategy. These days, Moses 
applies the lessons learned in the Mississippi voter 
registration work to establish math as an indis­
pensable aspect of twenty-first century literacy for 
the nation’s students

Owen Herman Brooks was born in 1928 in New 
York City of parents who emigrated from Jamaica. 
His family moved to Boston, Massachusetts, where 
he began his political education working on the 
municipal campaign of Edward Brooks, who would 
in time serve as a the first African-American in 
the United States Senate since Reconstruction. He 
recalls his first journey south in 1951, chartering 
an integrated bus to drive to Richmond, Virginia to 
observe the trial of the so-called Martinsville Seven,

3a



4a
a group of young African-American men who were 
tried, convicted, and executed for the alleged gang 
rape of a white woman. He came to Mississippi 
for the first time in 1964. That year, the National 
Council of Churches, an ecumenical partnership of 
Christian faith groups, formed the Delta Ministry to 
hold grassroots training of black sharecroppers in 
Mississippi on the importance of voting and political 
activism. Brooks became a field representative of the 
Ministry in 1965 and has remained in the state to the 
present day working on political empowerment of 
disenfranchised groups.

Ellen Lake’s ancestors were Jews; some came from 
Germany while others fled Eastern Europe at the 
turn of the 20th century to escape anti-Jewish 
pogroms and forced draft into the Tsar’s army. 
Her family settled in New York City. Her first 
involvement with civil rights work came as a high 
school student when she picketed a landlord in Rye, 
New York who would not rent to blacks. In 1964, 
after her sophomore year in college, she travelled to 
Mississippi for Freedom Summer, where she worked 
on voter registration. The following summer, she co­
founded The Southern Courier, a weekly civil rights 
newspaper in Alabama. After Lake went south for 
Freedom Summer, her father became the treasurer of 
the local Friends of the Mississippi Freedom summer 
while her mother wrote letters to her congressmen, 
senators, and the Justice Department, demanding 
protection for the volunteers and local civil rights 
activists.

Willie Edward Blue is a native of Charleston, 
Mississippi, whose grand-parents worked as share­
croppers on a plantation in Louisiana. Growing up, 
he recalls two neighbors being run of town, their



houses burned and their lands seized for trying to 
organize a local chapter of the NAACP for Talla­
hatchie County. After discharge from the United 
States Navy in 1963, he returned to Charleston, 
planning to use his veteran benefits to spend time 
home before college. However, at the time Mississippi 
vagrancy laws required that he be employed or 
deemed a vagrant and subject to arrest and imprison­
ment. The only employment open to a young Black 
man was work in cotton fields, so, he hitchhiked to 
Greenwood, Mississippi, where he joined the local 
SNCC office, first as a volunteer and then as a staff 
member in the organization’s voter registration 
campaign. Like many of his colleagues, he suffered 
jailings and beatings, the physical scars of which he 
carries to this day. And, like many of his colleagues, 
he recalls back in those days of protests turning to 
the Federal Bureau of Investigation and other federal 
agencies for protection, only to be told that it was not 
the place of the federal government to interfere with 
state business.

Doctor Leslie Burl McLemore was born in 1940 in 
Walls, Mississippi. He obtained a Bachelor’s Degree 
from Rust College, a Master’s Degree in Political 
Science from Atlanta (now Clark) University and 
a Ph.D in government from the University of 
Massachusetts at Amherst. After a post-doctoral 
fellowship at John Hopkins University, he joined the 
faculty at Jackson State University. Since his 
retirement from Jackson State as Professor Emeritus 
in Political Science, Dr. McLemore has served as 
Director of the Fannie Lou Hamer National Institute 
on Citizenship and Democracy. Founded in 1997 and 
named after a pioneer of the civil rights movement, 
the Institute works with local school boards, colleges, 
state agencies and national organizations to promote

5a



6a
civic engagement and popular sovereignty. Dr. 
McLemore began his civil rights work as a student in 
1961 when he helped organize protests to integrate 
the lone movie theater and lunch counter in Hollis 
Springs, Mississippi. Rather than integrate, the 
movie theater closed down, while the drug store 
removed all seating at its lunch counter. He helped 
found a local branch of the NAACP at his college. 
Approximately a year before he would be assas­
sinated in his driveway, Medgar Evers installed Dr. 
McLemore as an officer of the local NAACP. Dr. 
McLemore’s grandfather was one of the first African- 
American men to own land in Walls, Mississippi, but 
he was not permitted to vote. Today, Dr. McLemore 
continues his civil rights work through the Fannie 
Lou Hamer Institute.





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No. 12-96

Shelby County, Alabama,

V.

Petitioner,

Eric H. Holder, Jr., Attorney General, et al.,
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Counsel For Respondents And 
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United States Department Of Justice 
950 Pennsylvania Avenue, NW 
Washington, DC 20530-0001 
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DEBO P. Adegbile 
NAACP Legal Defense 

& Educational Fund, Inc.
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Jon M. Greenbaum 
Lawyers’ Committee for 

Civil Rights Under Law 
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Suite 400
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American Civil Liberties 

Union Foundation 
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No. 12-96

In The

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Shelby County, Alabama,

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Petitioner,

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Respondents.

On Writ of Certiorari to the 
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