According to a recent report, five million voters could find it more difficult to cast a ballot in 2012. (1) During the 2011 legislative session, legislatures across the country passed laws that changed the requirements for voting and registration. (2) In many states, a government issued photo ID is now necessary where once a utility or electric bill would suffice. (3) Additionally, many states have reduced the number of days for early voting, which could adversely affect working class and minority persons who utilized that option in the previous presidential election. (4) The recently enacted voter requirements can potentially serve as barriers to participation in the franchise.
Although not as conspicuous as Bull Connor (5) on the steps of a Birmingham, Alabama, courthouse daring Black citizens to attempt to register to vote, these new voting barriers are just as effective. (6) Voter ID laws, restrictions on third party registration, felon disenfranchisement, and other methods limiting access to the ballot could sway an election and certainly discourage millions from voting. (7)
While access to the ballot is currently at issue, the redistricting season offers additional cause for concern for minority voters. League of United Latin American Citizens v. Perry, (8) Perry v. Perez, (9) Bartlett v. Strickland, (10) Northwest Austin Municipal Utility District No. One v. Holder, (11) and Shelby County v. Holder (12) all challenge the Voting Rights Act and its ability to ensure that minority voters have an equal opportunity to participate in the election process. Do the states' rights claims from Alabama and Texas differ from the states' rights claims of the 1950s and 1960s? (13) Although the claims may differ in some respects, an attempt to escape federal supervision remains the same. (14)
Where might these contemporary events rank in the ability for citizens to be heard? Are these essentially hurdles for individual voters, or are they opportunities for creative lawyers to develop strategic approaches to eliminating obstacles to the franchise? These new trials bask in the shadow of a great civil rights hero, Attorney Fred Gray, whose contributions to voting rights and election law were quite courageous and provide a longstanding legacy and roadmap for success in this new millennium.
Attorney Gray is a native of Montgomery, Alabama, and an accomplished civil rights attorney. At the age of twenty-four he represented Mrs. Rosa Parks and the Montgomery Improvement Association in landmark litigation (15) that began to dismantle segregationist laws, not just in Alabama, but across the segregated South. (16) With somewhat of an historical view, this law review article will consider the life, the legacy, and the lessons that Attorney Fred Gray provides to attorneys. Can attorneys use the law to shape outcomes in the ability to be heard? Is there legal ground available to expand the ability to be heard? Can attorneys use the Voting Rights Act, and other tools that were used and developed so masterfully in the hands of Attorney Gray, to quash attempts to disenfranchise minorities today? This is certainly a very tall order, but well worth the attempt to move forward in the area of racial equality.
Part I of this article will discuss Attorney Gray's life and two prominent civil rights cases, Gomillion v. Lightfoot (17) and Williams v. Wallace. (18) These two cases were landmarks that forced the courts to address issues of malapportionment and paved the way for the passage of the Voting Rights Act of 1965. The second part of this article will review the legacy of Attorney Gray under the purview of the Voting Rights Act (VRA). Finally, the article will discuss the lessons that we can learn from the efforts of Attorney Gray and identify contemporary challenges and mechanisms, such as efforts to rollback voter registration access and opportunities to participate in the franchise.
Attorney Fred Gray's life continues to serve as a testament to discipline, commitment, hard work, and forgiveness. He grew up in Montgomery, Alabama, at a time when segregation was the order of the day. (19) Attorney Gray graduated from historically black Alabama State University, formerly known as Alabama State College. (20) Knowing that he wanted to be a lawyer and understanding that no law school in the state of Alabama would admit him because of his race, he accepted a State of Alabama tuition grant to study at Case Western Reserve in Cleveland, Ohio. (21) Although dissuaded from returning to Alabama to practice, he vowed to return to his home state and "destroy everything segregated he could find." (22) He was admitted to practice in Ohio and Alabama. (23) In fact, he was one of a very few African American attorneys in the state of Alabama in the 1950s. (24)
Upon his return to Alabama, he found a number of things to destroy. (25) The black lawyer was a scarcity at the time that Attorney Gray returned to his native state. (26) Nonetheless, his focus and drive made him a social engineer on whom the NAACP relied. (27) He worked with Dr. Martin Luther King, Jr., in providing legal counsel in the historic Montgomery Bus Boycott and throughout the Southern Christian Leadership Council's (SCLC) involvement in desegregating the state of Alabama. (28) In 1955, he represented Mrs. Rosa Parks in a yearlong effort to change the segregation laws in public transportation, which led to the United States Supreme Court decision in Browder v. Gayle. (29) It is interesting to note that at the time of the Montgomery Bus Boycott, Attorney Gray was twenty-four years old, challenging a system of segregation that had been in place for nearly a century. (30) While the victory in Brower was very important in the struggle for equality, there was more work to be done and a need for quantifiable results.
Landmarks: Early Civil Rights Cases
Gomillion v. Lightfoot (1960).
One such result is epitomized in the landmark Supreme Court case Gomillion v. Lightfoot. (31) According to Attorney Gray, Macon County, Alabama, which is the county that includes the city of Tuskegee and the famed Tuskegee Institute, (32) had long served as a site from which to challenge Jim Crow laws. (33) Dr. C.G. Gomillion helped form the Tuskegee Civic Association, which mounted challenges, inter alia, against segregated education, (34) farm subsidies, (35) and jury selection. (36) He also served as lead plaintiff in Gomillion v. Lightfoot, which addressed a 1957 redistricting that notoriously changed the shape of the legislative district in Tuskegee, Alabama, from a square to a twenty-eight sided figure, effectively carving out all but approximately four black citizens from the predominately black city. (37)
In his own words, Attorney Gray stated the following:
In 1957, there were about 400 African American voters in the city of Tuskegee. There was a municipal election coming up, and although they did not have enough votes to get a black in office, they had enough votes to be the balance of power. Our then senator, Sam Englehart, passed a nice little bill that changed the city limits of Tuskegee. As you saw on the screen here today, Tuskegee city limits used to be a square. They changed it to be what I called a twenty-eight sided sea dragon in my brief to the Supreme Court. What they did left every white voter in the city limits and moved the city boundaries so as to exclude as many black voters as they could. They excluded all but four, and the only reason those four were not excluded was because their exclusion would have meant that some white people were excluded, and they were not going to do that. That case, Gomillion, is a very important case, and nobody thought I could win it. Robert Carter, now a senior judge in Manhattan, worked with me on that and many other cases, including Browder v. Gayles. For Gomillion, I had to run all over the country to get him to agree to sit down and look at the complaints that I had prepared. Everybody said, you can vote in county elections, you can vote in the state election, and you can vote in the federal election, but you cannot vote in the city election, not because of your race, but because you do not live in the city. (38) Attorney Gray represented the petitioners in this case, who were African American citizens of Alabama and residents of the City of Tuskegee. (39) The petitioners brought this suit alleging that enforcement of the redistricting statute discriminated against them and violated the Fourteenth and Fifteenth amendments of the U.S. Constitution. (40) Attorney Fred Gray challenged the Tuskegee gerrymander in federal court. (41) The lower courts considered the tactic a legal exercise of legislative power and refused to find the gerrymander unconstitutional. (42) The lower courts relied primarily on a previous United States Supreme Court decision, Colegrove v. Green (43) which considered redistricting issues as unjusticiable and political questions. In Colegrove, Supreme Court Justice Felix Frankfurter characterized the judiciary's interference as entering the "political thicket." (44)
Although Gomillion remains a landmark, its impact today goes farther than Tuskegee. The courts began to consider issues of racial discrimination in redistricting cases and not shy away from them in the name of politics. Gomillion helped to lay the groundwork for the Voting Rights Act of 1965, (45) discussed infra, which has been heralded as an extremely important and effective piece of legislation. (46)
Williams v. Wallace (1965).
Attorney Gray's work on Williams v. Wallace also proved crucial in the fight for equality in voting. (47) Williams v. Wallace was a key piece of litigation that led to the passage of the Voting Rights Act of 1965. (48) Mr. Gray brought this class action lawsuit to force the Governor of Alabama, George Wallace, (49) to protect those who were marching from Selma to Montgomery to show their...