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An Excerpt from “Taking the Fight South,” by Howard Ball

Distinguished historian and civil rights activist Howard Ball has written dozens of books during his career, including the landmark biography of Thurgood Marshall, A Defiant Life, and the critically acclaimed Murder in Mississippi, chronicling the Mississippi Burning killings. In Taking the Fight South (February 2021), arguably his most personal book, Ball focuses on six years, from 1976 to 1982, when, against the advice of friends and colleagues in New York, he and his Jewish family moved from the Bronx to Starkville, Mississippi, where he received a tenured position in the political science department at Mississippi State University. For Ball, his wife, Carol, and their three young daughters, the move represented a leap of faith, ultimately illustrating their deep commitment toward racial justice.

From Chapter Five: Defending the 1965 Voting Rights Act

During the battle I sat down and had coffee with the Mississippi lawyer. He was a bright person and his argument was one that had been discussed in law journals for a number of years. Basically, because of the many problems with enforcement of Section 5, he wanted to have the federal district court judges in all the covered jurisdictions hear complaints on a timely basis from the DOJ’s Voting section attorneys and, if the DOJ did not litigate, from individuals who claimed voter dilution. He was gravely concerned about the hazards of leaving implementation to a handful of lawyers and young paralegals hundreds of miles away from the vote dilution controversy. 

The difference between us was that I was concerned—but not gravely concerned—about compromised compliance but felt that the Act could be fixed to address these problems. I was not willing to allow federal district judges serving in the covered states, some of them very hostile to civil rights petitioners, to make these determinations that would affect local politics in the South, possibly for decades.

Finally, it was my turn to testify. My statement contained many surprises for the Committee members. I discussed the extremely pressed Voting Section staff and attorneys. They simply could not, with the personnel on hand (less than 40 in the Voting Section at the time), adequately deal with the voting changes—submitted and not submitted—from attorneys in the 7,000 jurisdictions in 22 states that were covered by the VRA. And so, they had to develop processes which gave a semblance of oversight but that led to a more than a 98% pre-clearance rate. 

I spoke about the untold hundreds of local covered jurisdictions who did not pre-clear but followed the “Indianola way.” And I pointed out that the Voting Section attorneys had never used the criminal penalties found in the statute to deal with those white officials who refused to pre-clear voting changes. I said that my feeling was that if the DOJ brought criminal indictments against a single local city attorney who did not intentionally pre-clear a voting change with the DOJ, within a minute that message would be received all across the covered jurisdictions and that there would be immediate improvement in pre-clearance submissions!

I urged extension of the act, with more funding for the DOJ’s Voting Section so that there could be better enforcement of Section 5. Finally, I spoke of the palpable disenchantment felt by blacks I met in Mississippi. They had finally been given the means, they believed, to finally use the right to vote in 1965. However, as soon as they largely overcame vote denial, they saw new actions by the white power holders that effectively diluted their vote by, for example, changing voting district lines or making some positions appointive rather than elective.

Their votes did not elect local blacks to serve as select-persons on the county board—even though there was a strong majority black vote in their town or county. This was, I said, the voting reality in the deep South. No longer was there vote denial; it had been replaced by the even more insidious vote dilution. It had to be fixed and it was up to the Congress to fix it.

In the questioning period, one clearly saw the two parties at work on me. The Democrats asked me to amplify a number of points that addressed the non-compliance problem. One black legislator, Harold Washington, from the Chicago area (he was the mayor of Chicago before coming to the Congress) was clearly shocked, as he told me, about the “Indianola way” response to Section 5. He said that my testimony was “shocking” and that it showed clear evidence of a “massive failure of compliance.” 

Another legislator, a Republican from Illinois, Henry Hyde, responding to my testimony said that “the Justice Department has utterly failed to enforce the law.” He was amazed that the DOJ had never used the criminal penalties in Section 12 of the Act. That section provided for the imposition of a maximum $5,000 fine and a five-year jail term for local officials who did not comply with Section 5. He said: “If one or two people go to the slammer, they’d start to comply.”

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