Marc Elias of Democracy Docket, whom I’ve written about before, is one of the most deeply committed individuals at the forefront of our battle to combat voter suppression. He was constantly in the courtroom during the post-2020 election challenges, beating back all the phony claims, and he’s fighting the good fight once again.
In the May 25th issue of Democracy Docket, he describes a precedent set by civil rights activist Fannie Lou Hamer in the 1960s that could be employed today against anyone who is elected to office where voting discrimination has occurred.
Hamer, a Black woman living in Mississippi, decided in 1964 that she would launch a Democratic primary challenge for Congress against the incumbent, a white segregationist named Jamie Whitten. In her Congressional district, although 52.4% of the residents were Black, they amounted to less than 3% of the registered voters.
That low percentage wasn’t for lack of trying. Black voters were not permitted to register. They were intimidated physically and otherwise discouraged by the state from exercising their Constitutional right to vote.
“While she lost the primary 35,218 to 621, she set in motion one of the most consequential House election contests in history. And she may well have set the stage for the use of that process to fight voter suppression today.” (emphases mine throughout)
After the primary, Hamer and two women from other Congressional districts—Annie Devine and Victoria Gray—tried to qualify as third party Congressional candidates under the banner of the Mississippi Freedom Democratic Party (MFDP).
The State Board of Elections denied their request. As Mississippi had a total of five Congressional districts, the three women were ostensibly speaking for voters in a majority of the state’s districts.
After the election, the women and this new entity, the MFDP, sought to challenge the election results.
“Half of the state’s population were denied the right to vote, and those few Blacks who did manage to register were prevented from freely participating in the electoral process, which in turn made the election fraudulent. Therefore, the House would be asked to set aside the results, refuse to seat the state’s white Congressmen, and instead call for new and fair elections in which every citizen could vote regardless of race.
“Legally, the House has the power to refuse to seat, or to unseat, any member for any reason it chooses — the question is whether it has the political will to do so in defense of Black voting rights.
“The members of the MFDP believed that this was a good way to continue the momentum from Freedom Summer and bring the inequality of Mississippi politics to the national stage again. It would also serve as a way to gain support from Congress.”
The above precedes a moving description by Kwame Toure (Stokely Carmichael) of the quiet demonstrations at Congress in support of this effort. Here’s a sampling:
“I looked into the legislators’ faces as they passed. Most could not take their eyes off those careworn, tired black faces. Some offered a timid greeting, a smile, or tentative wave. Others flushed and looked down. All seemed startled. Some clearly nervous, even afraid. All seemed deeply affected in some way.
“Our people just stood there and looked at them. For these lawmakers using the tunnels that morning, that impassive, profoundly physical presence was an unexpected confrontation with reality. That grave, mute presence became the most effective and eloquent of testimonies. To those passing congressmen, the issue of Southern political injustice could no longer remain an abstract statistic, distant, and dismissible.”
(I find the difference between these 1965 members of Congress and today’s opposition members both jarring and infuriating.)
Though the resolution was defeated, the evidence the group submitted to Congress helped lay the groundwork for the Voting Rights Act of 1965.
Elias called the election contest “an evidentiary rout”: 10,000 pages of testimony from more than 400 witnesses; depositions from 30 Mississippi counties; hearings in 12 states.
The white Congressmen denied having any “personal knowledge” of voting discrimination in Mississippi. And they “complained bitterly” that they lacked the resources to counter such a substantive case.
Obviously, the lack of resources was irrelevant. After a 3-hour hearing, the Southern Democrats in control of the House Administration Committee led a vote of 20-5 to advise the full House to reject the challenge.
Now Elias gets to the salient point.
One of the reasons the Committee members gave for dismissing the challenge was that Hamer and her colleagues hadn’t shown that they could have been elected if there’d been no discrimination.
However, Elias points out:
“Between 1867 and 1901, the U.S. House decided more than 40 contests where violations of the 14th and 15th Amendment were found to be sufficient grounds for a contest to prevail, even without evidence that the election outcome would be different.”
In this instance, a compromise was struck. Enough members of Congress had been moved by the challenge that, while agreeing not to rock the boat this time, they insisted that there be some lasting impact—expressing confidence that the Voting Rights Act would resolve future issues.
“As one member from New Jersey [liberal Democrat Frank Thompson] said while announcing his support to dismiss the contest: ‘The record of this debate…will constitute a clear precedent that the House of Representatives will no longer tolerate electoral practices in any State or district which violate the legal or constitutional rights of citizens to register, vote, or to become candidates for office.’”
And Republican Congressman Charles Goodell from New York, a member of the House Administration Committee, said the House will “use the power to unseat in the future, if there is corroborative evidence of the violation of the Voting Rights Act of 1965.”
In view of the proliferation of voter suppression laws being enacted throughout the country today, Elias calls on Congress to “reaffirm the House’s promise in 1965 to refuse to seat, or to unseat, members who benefit from discriminatory voting laws.
“It is beyond question that the House has the absolute right to adopt such a rule—since it alone is the ‘Judge of the Elections, Returns and Qualifications of its own Members.’ So, the only barrier to this approach is the House itself and its reticence to invoke its constitutional power.”
Black women played an outsized role in securing our democracy in 2020. It would be wonderfully fitting if the accomplishments of Fannie Lou Hamer in 1965 could now be applied to ensure the continuation of those gains and to build upon them for the long term.
Now is the time for us to demand that Congress heed this call. I’m contacting my Congressional representative to emphatically urge him to adopt this rule to prevent violations of the Voting Rights Act.
While we must continue pushing for the passage of the For the People Act and the John Lewis Voting Rights Act, encouraging today’s House to keep that 1965 promise is certainly worth the effort—don’t you think?