By David Kurlander

The Supreme Court on July 1st ruled 6-3 to overturn large portions of Section 2 of the 1965 Voting Rights Act (VRA), which barred state governments from making voting more difficult for minorities. In the case, Brnovich v. Democratic National Committee, the Court upheld Arizona Attorney General Mark Brnovich’s requirement that voters submit their ballots in their own precinct and without the help of most others, which the DNC argued had discriminated against impoverished voters of color. On Now & Then, Heather Cox Richardson and Joanne Freeman zeroed in on Justice Elena Kagan’s scathing dissent, in which she called the VRA “a statute that stands as a monument to America’s greatness.” An examination of the initial 1966 Supreme Court case that upheld the VRA, South Carolina v. Katzenbach, illuminates the stakes of the law.

The Voting Rights Act was drafted in part by Attorney General Nicholas Katzenbach. Shot down over Germany during World War II, Katzenbach read 450 books while a POW. He became a Rhodes Scholar, wrote law books, and served as Robert Kennedy’s deputy at the Department of Justice. In June 1963, he confronted Alabama Governor George Wallace on the steps of the University of Alabama in Tuscaloosa, where the white supremacist Governor had illegally blocked the college’s auditorium to try to stop the admission of Black students. Wallace ultimately unblocked the door. After Robert Kennedy decided to run for Senate in the aftermath of his brother’s slaying, Kennedy recommended to newly ascended President Lyndon Baines Johnson that Katzenbach succeed him.   

Katzenbach successfully defended the anti-discrimination statues in the 1964 Civil Rights Act before the Supreme Court in October 1964. He and Johnson both recognized, however, that the legislation was inadequate to combat literacy tests, poll taxes, and other bureaucratic mechanisms used by Southern states to keep Black Americans from voting. After Johnson resoundingly won the 1964 presidential election, he told Katzenbach, “I want you to write me the goddamnest toughest voting rights act that you can devise.” Katzenbach worked with bipartisan leaders of Congress to draft the bill and submitted the VRA on March 17th, 1965. 

The VRA got to Congress the following day and Katzenbach testified in favor of the legislation, arguing that the bill “would not only…demonstrate our good intentions. It would allow us to translate those intentions into ballots.” 

The testimony came as white law enforcement officers and segregationists attacked marchers during voter registration marches organized by Martin Luther King, Jr. in Alabama. Three weeks earlier, a state trooper shot and killed Black deacon Jimmie Lee Jackson during a peaceful march in Marion. Then, on March 7th, state and local police attacked marchers on the Edmund Pettus Bridge in Selma. Unidentified white men beat and killed white Unitarian Universalist minister James Reeb during another march on March 11th. The terrifyingly violent reaction to King’s activism further spurred Congress. On May 26th, the Senate passed a slightly amended version of the bill by a vote of 77-19. 

Johnson signed the Voting Rights Act into law on August 6, 1965. Section 5, often called the “preclearance requirement,” required that states with a history of voter discrimination first submit and receive approval for any change in voting laws. The formula specifically compelled states with literacy tests or low turnout — less than 50% of eligible voters registered — to clear voting laws with the District Court for the District of Columbia or the U.S. Attorney General. 

In September 1965, South Carolina’s Attorney General, Daniel R. McLeod, asked the Supreme Court for an injunction against submitting requirements to Katzenbach, arguing that the VRA limited the state’s “sovereign power to prescribe fair and reasonable qualifications for registration of her electorate.” At the time of the suit, only 26.8% of eligible Black voters were registered in South Carolina. 

McLeod’s appeal asked that the Supreme Court hear the suit on its seldom-invoked original jurisdiction—before lower courts ruled. In his memoir, Some of it Was Fun, Katzenbach said of McLeod’s gambit: “It was welcome, because it provided a quick way of answering any constitutional questions and putting them to rest.” By December, five other Southern states filed briefs to join South Carolina in their suit. 

In January 1966, Massachusetts Attorney General Edward R. Brooke, then running a successful campaign to become the first Black Senator since Reconstruction, led 20 Northern and Western Attorneys General in filing briefs in support of the VRA, arguing that the law was a reasonable way to enforce the mandate of the Fifteenth Amendment, the 1870 right that guaranteed the minority vote. “The right of all United States citizens to vote on equal terms…is such an ingrained, accepted part of the system of values under which modern Americans live that is incomprehensible, in the year 1965, to realize that in a few states this right is still not acknowledged,” Brooke said. 

Oral arguments for South Carolina v. Katzenbach were scheduled for mid-January. As the arguments approached, Johnson’s new Solicitor General, Thurgood Marshall, expressed interest in arguing for the government. Katzenbach, however, asked to argue the case himself. Katzenbach reflected that Marshall may have been “a little disappointed,” but that “he graciously accepted my wishes and spent many hours preparing me for the argument.” The next year, Marshall would become the first Black Supreme Court Justice. 

Katzenbach laid out three main points during the January 17th oral arguments: that literacy tests discriminated against Black voters in South Carolina, that county-by-county litigation over the tests was moving too slow and thus needed more vigorous enforcement, and that there was “an urgent need to secure compliance with the 15th Amendment and to secure compliance now.” McLeod focused a good part of his rebuttal on what he had called the “tender solicitude” of the Northern states that joined the case with Katzenbach, arguing that they were hypocritical because of their own discriminatory voting issues. 

On March 13th, Chief Justice Earl Warren delivered the 8-1 ruling of the court: Section 5 of the VRA was upheld and the federal government could enforce the law in its entirety. Warren concluded his opinion with an passionate defense of voting rights that even quoted from the 15th Amendment: “After enduring nearly a century of widespread resistance to the Fifteenth Amendment, Congress has marshalled an array of potent weapons against the evil, with authority in the Attorney General to employ them effectively…Hopefully, millions of non-white Americans will now be able to participate for the first time on an equal basis in the government under which they live. We may finally look forward to the day when truly ‘[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.’”

An estimated 800,000 Black people registered to vote in the South between 1964 and 1967. As Katzenbach put it in his memoir, the expansion of voting helped “change Southern politics and get blacks elected to office in state and local elections. It is that simple fact which broke down the caste system that had prevailed.” 

Katzenbach resigned later in 1966 over his distaste with FBI Director J. Edgar Hoover’s continual expansion of covert wiretaps on Martin Luther King, Jr., which he had initially approved. Katzenbach’s involvement in the Vietnam War in the later 1960s further complicated his career. Throughout the rest of his life, however, he remained watchful of Black voting rights. Citing persistent gerrymandering and the growth of driver’s license requirements in voting, Katzenbach wrote in 1999, “The sad footnote to this history is that despite renewals of the act, there are still efforts to dilute the power of black votes.”

Katzenbach did not live to see last week’s Brnovich decision. Nor did he see the Roberts Court’s 2013 Shelby County v. Holder decision, which rolled back the preclearance requirements that underlay South Carolina v. Katzenbach. Yet the “sad footnote” he commented upon has only grown. At the end of this week’s Now & Then, Heather offered a simple interpretation of the Supreme Court’s gutting of the VRA: “When people tend to, at least in our history, focus on state power, often that reflects a desire to go ahead and control a percentage of the population.

For more on the struggle for the VRA, read Gary May’s 2013 Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy. 

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