Our Struggle for Civil Rights: A Personal Reflection
I will begin by introducing myself to those of you meeting me for the first time with a personal reflection about the impact on my own family of our ongoing struggle for universal civil rights and human dignity.
I do so because, as lawyers, the lives of individual Americans are where our social justice work must find its most lasting meaning.
Some Cummings Family History
During the era that would soon give America Dr. Martin Luther King, Jr., my parents, Robert and Ruth Cummings, began their adult lives still struggling as share croppers in Manning, Clarendon County, South Carolina.
They were working (but not owning) the same land that our ancestors had worked as slaves.
Americans who know our history have a sense of how difficult life was like there for people of color.
We know it from the Supreme Court’s decision in Briggs v. Elliot, one of the five cases that later would be decided under the shared designation: Brown v. Board of Education.
We, who are lawyers, may remember the harsh conditioning of inferiority, the little Black children choosing the white, rather than the Black, dolls.
We may even remember that the original motivation for the Briggs litigation was the refusal of Clarendon County to provide a school bus for children who were forced to walk miles to attend their segregated school.
There in Clarendon County, my parents were denied their fundamental human and civil rights.
They were denied a formal education, adequate health care, economic opportunity, and even the foundational right to vote for which their ancestors had risked their lives.
Their futures must have seemed foreclosed on the days they were born.
Yet, today, my brothers and sisters and I can thank God that my parents broke free from that dismal future.
From history, we also know that, during World War II, J. Phillip Randolph had convinced President Roosevelt (after significant effort) to integrate our nation’s defense industry.
That action created the prospect of decent jobs for thousands upon thousands of poor African Americans who, like my family, had been tied to the land like medieval serfs in the Middle Ages.
As a result, Father and Mother could move from South Carolina to South Baltimore in order to create a better life for their children.
Yet, even in Baltimore, I was disparaged and excluded in my youth. I was placed in special education in a poor and still segregated South Baltimore elementary school.
Guardians of our Faith
Nevertheless, we survived and, eventually, we children thrived because my parents taught their children to hold onto our faith that a day would come when the good in Americans would outweigh our failings.
Ladies and Gentlemen: You, who are engaged in the social justice mission of our profession are living proof of our faith.
And, in this spirit, here is my own personal insight about the value of your calling.
Rights that Others Must Respect
Along with the other Black children in my South Baltimore neighborhood, just blocks from where we are meeting today, I received my first personal lesson about the struggle for civil rights at a swimming pool called Riverside.
In those days, the white children of our neighborhood swam and relaxed in the Olympic-sized Riverside Pool that Baltimore City maintained at public expense not far from where I lived.
Yet, even in “the Free State” of Maryland, Black children like us were barred from Riverside by the cruelty of segregation.
We were consigned by the color of our skin to a small, aging wading pool at Sharp and Hamburg Streets, a pool that was so small that we were forced to take turns just to be able to sit in the cool water.
Looking for a way to escape the summer heat of South Baltimore’s streets, we Black children were upset about our exclusion from that public pool at Riverside.
So, we complained to our recreation leader, Captain Jim Smith. To their everlasting credit, Captain Smith and Juanita Jackson Mitchell of the NAACP organized protest marches.
Now, I would like to be able to tell you that the white families at Riverside accepted us graciously. After all, we were just little children who wanted a place to swim. Sadly, that is not what happened.
We tried to gain entrance to the pool each day for over a week – and as we returned, again and again, we were spit upon, threatened and called everything but children of God.
On one of those children’s marches, I was cut by a bottle thrown from the angry crowd. Our parents became concerned for our safety, and Captain Smith requested police protection – but no help was forthcoming.
It seemed as if we were alone in a hostile world. Then, when all seemed lost, the NAACP’s Juanita Jackson Mitchell marched up the street toward our little group of children like she was the Empress of South Baltimore.
With her were two reluctant, but grimly determined, Baltimore City policemen. I can still see their faces in my mind. They clearly were more afraid of her anger than of the jeering, racist crowd….
Today, nearly six decades later, the history books say that the Riverside pool was peaceably integrated. It was – by Thurgood Marshall’s Constitution and Juanita Jackson Mitchell’s determination that all children would be treated fairly. On that hot summer day in South Baltimore, a lawyer stood up for what was right – for some little children who needed her.
Social Justice in Small Places Close to Home
My friends, I would submit to you that this difficult but uplifting memory speaks to the essence of our progressive vision for our nation and the world. It is at the heart of the 1964 Civil Rights Act and our continuing defense of equal access to public accommodations.
As Eleanor Roosevelt once insightfully observed:
“Where, after all, do universal human rights begin? In small places, close to home….”
“[T]hey are the world of the individual person…where every man, woman and child seeks equal justice, equal opportunity, equal dignity without discrimination....”
“Unless these rights have meaning there, they have little meaning anywhere.”
By recalling this childhood experience, I am not saying that the integration of a swimming pool in South Baltimore changed the course of American history.
What I can and will share with you is that the experience transformed my entire life.
There we were, about three years after Dr. King’s Prayer Pilgrimage for Freedom – the protest march when he demanded that this democratic nation give all Americans the right to vote.
At the time, I was just a child, but the idea of having “rights” sounded great to me.
Today, some may find this reality difficult to comprehend, but before those marches at Riverside, I had never experienced having a right that other people had to respect.
Yet, after we gained the right to swim in that public pool, I did have a right that was important to me, a right that others had to respect.
And that realization made all the difference in the way that I viewed myself and our world . . . .
Advancing Social Justice in the Wake of Shelby County v. Holder
Now, ladies and gentlemen, the impact of learning that I had a right, meaningful to me, that others had to respect was to set me on the course that brought me to this luncheon today.
As a lawyer, I litigated for 20 years before being elected to the Congress.
And, as a practicing attorney, I had faith that our federal courts would be the primary guardians of our civil rights.
Two decades later, however, I must acknowledge that my faith in our Supreme Court as the ideologically neutral guardian of our civil rights has been shaken.
And, if any here agree that my doubts are justified, it then follows that the primary path to defending our democracy and advancing our civil and human rights must be through the political, electoral process.
This is where the urgency of our struggle as citizens to advance and protect our voting rights comes into play….
Anatomy of a Constitutional Crisis
In order to elaborate on what I mean by this idea, controversial among lawyers, I must take you back in time more than half a century.
In 1957, 3 years after Brown v. Board, Dr. King echoed the pain of millions of Americans in his “Give us the Ballot” speech at the Prayer Pilgrimage for Freedom:
“…[A]ll types of conniving methods are still being used to prevent Negroes from becoming registered voters…. And, so, our most urgent request to the president of the United States and every member of Congress is to give us the right to vote.”
Then, in perhaps the most comprehensive expression of his “Dream” for America during the 1963 March on Washington for Jobs and Freedom, Dr. King responded to those who were asking him and the other advocates for universal civil rights, ‘When will you be satisfied?’
“[W]e cannot be satisfied,” he declared, “as long as a Negro in Mississippi cannot vote, and a Negro in New York believes he has nothing for which to vote.”
Half-a-century after Dr. King’s death, these words retain a haunting relevance for the Americans of our time.
Once again, as in 1957, all types of conniving methods are being utilized to prevent American citizens from registering and voting.
Voter suppression remains a clear and present danger to the effective functioning of our Democratic Republic – and it must be stopped.
Once again, as in 1963, we cannot be satisfied as long as any American cannot vote – or believes that he or she has no reason to vote.
In any democratic system, temporary electoral disappointments are inevitable.
Yet, when millions of Americans conclude that our democratic process is failing them because it is rigged, we are facing a threat to the proper functioning of our Republic that we, as lawyers and citizens, must address.
A Slim Supreme Court Majority Usurps Congressional Power
Until its June 25, 2013, decision in the Shelby County v. Holder voting rights case, the Supreme Court had respected the express constitutional authority granted to the Congress (not the Court) by the Thirteenth, Fourteenth, and (especially) the Fifteenth Amendments.
It had been clear that voting right legislation would be upheld against facial attacks as long as the congressional legislation was rationally related to enforcement of the Fifteenth Amendment’s constitutional guarantees.
However, as we all know, in its appalling assertion of judicial activism in Shelby, a slim, 5-4 Supreme Court majority all-but-usurped the clear constitutional power and duty of Congress to legislatively protect minority voting rights.
Now, consider these facts.
For Americans of Color, the Thirteenth, Fourteenth and Fifteenth Amendments to our Constitution (commonly known at the “Civil War Amendments) are at the heart of American citizenship, equality and freedom.
Each of those Amendments concludes by vesting in the Congress of the United States the “power to enforce” these guarantees of citizenship “by appropriate legislation.”
The explicit delegation of that power of enforcement to the Congress – and not to the Supreme Court – reflected the 19th Century failures by the Supreme Court where slavery, citizenship, due process, equal protection and the suffrage were concerned.
Then, and now, the power of voting was the key.
It remains the essential guardian of a free, equal and democratic society.
Now, consider a little more history, if you will.
The Law Prior to Shelby
Since 1965, and prior to Shelby, the Congress and five Presidents of both major political parties had acted to create or preserve our nation’s core legislative guarantee that we will “ensure that the right of all citizens to vote, including the right to register to vote and cast meaningful votes, is preserved and protected as guaranteed by the Constitution.”
On four occasions prior to Shelby, the United States Supreme Court had upheld the constitutionality of the judgments that we in the Congress have made – including our judgment that the Section 5 “preclearance” requirements of the Voting Rights Act are essential to maintaining equal voting rights for all Americans.
And, as recently as 2006, we in the Congress reaffirmed our judgment that Section 5 remains vital to ensure that minority voters have free and full access to the polls in the jurisdictions affected.
In so doing, we considered an extensive factual record – a record that was found to be especially significant by the lower federal courts that have reviewed the recent challenges to Section 5.
We had held 21 hearings, received the testimony of more than 90 witnesses, and reviewed more than 15,000 pages of supporting materials.
Specifically, Congress found ample evidence of voting discrimination in the jurisdictions included in Section 5 by Section 4. That evidence included intentional discrimination as documented by continued disparities in registration and turnout; low levels of minority elected officials; the number of Section 5 enforcement actions since 1982; the amount of Section 2 litigation; and evidence of racially polarized voting.
Our judgments in 2006 had proven well-founded.
During the 2012 presidential election, Section 5’s preclearance process led South Carolina officials to reinterpret a photo ID law to reduce its discriminatory effect. It also blocked a stringent Texas photo ID law that would have had a retrogressive effect on minority voters’ access to the ballot.
Likewise, litigation arising from Texas’ redistricting validated Congress’ concern that intentional racial discrimination in voting continues to pose a credible threat to the rights of minority voters.
In short, the Supreme Court in Shelby County was presented with an abundant record justifying the continued application of Section 5 “preclearance requirements” to Alabama and the other affected jurisdictions – clearly enough to pass muster under the Court’s “rationally related” test.
Who Decides: The Congress or the Court
As Justice Ginsburg observed in dissent (joined by Justices Breyer, Sotomayor and Kagan):
“The question this case presents is who decides whether, as currently operative, Section 5 remains justifiable — this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments ‘by appropriate legislation.’”
In my view, the so-called “conservative” majority in Shelby County no longer deserves that appellation, having engaged in the most egregious act of judicial activism since the Bush v. Gore decision that decided the 2000 presidential election.
Acting in the wake of 2011 redistricting plans and 2012 civil rights violations, the Shelby County majority thrust the issue of equal and universal voting rights back into the forefront of our national political challenges.
Long before our 2016 presidential election, advocates for fair elections that engage all Americans on equal terms decried the weakening of our protections against voter suppression occasioned by a misguided Supreme Court majority.
In the 114th Congress, for example, I was honored to join Republican Congressman Jim Sensenbrenner, Democratic Congressman John Conyers, Jr., and more than 100 other legislators in co-sponsoring The Voting Rights Amendment Act of 2015, legislation that would have repaired much (although not all) of the injury to our voting rights that the Shelby decision has allowed.
Our proposed legislation never received an up-or-down vote in the Republican-dominated House.
As a result, Republican legislatures in many states made it far more difficult for untold numbers of voters to cast their ballots in 2016 (especially the elderly, the young and minorities).
In sharp contrast to the President’s assertions of widespread voter impersonation, the evidence of voter suppression in Republican-dominated states is compelling – although the undemocratic methods vary.
State voter-id laws, unwarranted purging of the voter rolls, racially gerrymandered congressional districts, and consciously understaffed and underequipped voting precincts in minority areas are just some of the more obvious methods being utilized to thwart our constitutional right to free and fair elections.
Taken together, these voter suppression methods do constitute a fraud – but this “voter fraud” is being committed by reactionary state legislators against the American People and our constitutional right to choose those who will govern us.
It is not caused by any sizable number of people voting improperly.
These politically motivated efforts to “rig” our elections may already have had far-reaching, destabilizing and dangerous consequences.
Defending the Foundation of our Citizenship
Deprived of a President who takes his constitutional obligation to protect our voting rights seriously and opposed by an Administration that has gutted the Justice Department’s Civil Rights Division, optimism about the future of our democracy may seem unrealistic.
Nevertheless, in the wake of our congressional elections last year, I remain confident that our democratic system is stronger than any individual or political party.
My ultimate confidence in our ability to defend our democratic system rests in the American people – in our determination to do what we must to uphold our ability to choose who will govern.
When our neighbors are required to produce identification at their polling places, we will work together to help them get those IDs.
Where cynical politicians make voting more difficult on Election Day, we will bring a box lunch and wait our turn. When the evidence shows racially-based attacks on our voting power, we will fight that suppression in our courts.
We are in a fight for the soul of our democracy, my friends, and this is a fight that we are determined to win.
As I speak to you today, reformers in the House of Representatives are moving forward with our planned public hearings and investigations to build the public record that will allow the Congress to comply with (what I consider unwarranted) holding of the Supreme Court’s majority in Shelby County and restore the Voting Rights Act to full force and effect.
On a parallel track, we are also moving forward with the For the People Act [H.R. 1], sponsored by my colleague and friend, Congressman John Sarbanes, that will be a major step toward giving all Americans a seat at the table.
The inter-related, three-fold objectives of our reform measures are clear.
We must make it easier, not harder, to vote by implementing automatic voter registration, requiring early voting and vote by mail, committing Congress to reauthorizing the Voting Rights Act and ensuring the integrity of our elections by modernizing and strengthening our voting systems and ending partisan redistricting.
We must reform big money politics by requiring all political organizations to disclose large donors, updating political advertisement laws for the digital age, establishing a public matching system for citizen-owned elections and revamping the Federal Election Commission to ensure there’s a cop on the campaign finance beat.
Third and finally, we must strengthen ethics laws to ensure that public officials work in the public interest, extend conflict of interest laws to the President and Vice President, require the release of their tax returns, close loopholes that allow former members of Congress to avoid cooling-off periods for lobbying, break the revolving door between industry and the federal government and establish a code of conduct for the Supreme Court.
This is our watch, my friends, and our challenge to overcome.
I began this conversation speaking to you lawyer-to-lawyer, but I conclude by speaking to you citizen-to-citizen.
We are not living in normal times.
We are at a fork in the road of our national history.
“We, the People” must choose which direction our nation will take.
Each of us must decide what our own duty – and oath to our Constitution – demands.
As it was in the days of my youth, we are in a struggle to preserve rights that others must respect.
We are engaged in a fight for the soul of our democracy.
And it is a fight that we, as a still free people, cannot afford to lose.