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When most people think about the Alabama origins of the 1965 Voting Rights Act, they see “Bloody Sunday” — when ABC News broke into its showing of the play “Judgment at Nuremberg” with footage of Alabama state troopers gassing and beating peaceful marchers on the Edmund Pettus Bridge. The brutal response to the voting rights movement in Selma and in Dallas County brought home to the nation the claims of disenfranchised black citizens and provided the impetus for President Lyndon Johnson’s decision to introduce new and sweeping voting rights legislation. The Selma-to-Montgomery march stemmed from the desire of activists in adjoining Perry County to protest the killing of Jimmie Lee Jackson at the hands of Alabama state troopers. One of the striking aspects of Free at Last to Vote: The Alabama Origins of the 1965 Voting Rights Act, Brian Landsberg’s understated and meticulous book, is the way Jackson fleetingly appears in the narrative: He helped to draft the letters black voters sent to the federal district court seeking its assistance in registering, and later being denied registration by a “referee” reluctantly appointed by a federal court to assess black citizens’ qualifications. So Landsberg is well aware of the “bravery and determination” of black citizens throughout the South, and their important role in creating a political climate that assured passage of a voting rights statute. His book, however, seeks to tell a different story. It focuses on how some of the Voting Rights Act’s most innovative features found their origin in a different Alabama experience — not in the streets, but in federal courthouses. The lawsuits brought by the Justice Department on behalf of black voters in Sumter, Elmore, and Perry counties revealed the inadequacy of constitutional doctrine and conventional litigation to vindicate the voting rights of black citizens and spurred the development of new legal structures for safeguarding the franchise. Landsberg is particularly well qualified to offer this account, as he served as a junior trial attorney at the Civil Rights Division in the early 1960s before going on to a distinguished career in both the Justice Department and as a law professor. He avoids the temptation to tell war stories, but his experience gives him an eye for telling details about many of the key players — for example, his perceptive description of Ruby Pickens Tartt, the chair of the Sumter County board of registrars during the period of the Sumter County litigation — as well as an intimate understanding of the way the litigation actually operated. The problem with county-by-county, as-applied constitutional challenges to literacy tests and so-called “good character” requirements (which demanded that aspiring voters be vouched for by already-registered individuals) was not just that they were immensely time-consuming, demanding thousands of hours of attorney time to show that the tests — which the Supreme Court had approved, at least in concept, in Lassiter v. Northampton County Board of Elections (1959) — were being applied in a discriminatory way. More profoundly, the litigation revealed a key remedial question: Simply requiring the tests to be administered fairly in the future would “freeze” unfair results into place, with black citizens facing a hurdle that their white neighbors had never faced — a hurdle, not incidentally, exacerbated by the inadequate education they had received in segregated and often substandard public schools. Landsberg convincingly suggests that the slow pace of the lawsuits, and the prospect that they would leave the voting rolls in the South unbalanced for years to come, was part of what inspired Congress to suspend — at first temporarily and only in certain jurisdictions, but later permanently and nationally — all literacy and good-character requirements. Similarly, Landsberg persuasively argues that the other great innovation of the 1965 act — the “pre-clearance” regime that has required specified jurisdictions to obtain federal approval from either the Justice Department or from a three-judge federal court in the District of Columbia before implementing changes in their election laws — also finds its origins in the Alabama litigation experience. A pattern of “protean voting laws, ever changing in response to judicial decisions forbidding particular discriminatory practices,” showed that litigation against specific practices might fail to accomplish real and effective enfranchisement. And the Justice Department’s experience with Southern federal judges — ranging from Judge Frank Johnson’s vigorous enforcement of black voting rights in the Elmore County case to Judge Daniel Thomas’ foot-dragging in the Perry County litigation — convinced the government to adopt administrative procedures for pre-clearance and for the appointment of federal voting registrars. Landsberg’s book fills an important niche in the history of the Voting Rights Act. More broadly, it offers an insightful case study into civil rights litigation and the construction of effective federal legislation for vindicating constitutional rights.
Pamela S. Karlan is the Kenneth and Harle Montgomery professor of public interest law and co-director of the Supreme Court litigation clinic at Stanford Law School.

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