by Derek Charles Catsam
In the summer of 2021, the Democratic delegation of the Texas legislature boarded a charter flight in Austin to fly to Washington DC. Their purpose for this exodus from the state was to deny a quorum to the governing body widely known as the “Ledge” in the Lone Star state. Governor Greg Abbott had used his power to call the legislature into a special session to pass a wide range of far-right legislation, including what would amount to an evisceration of voting rights in the state. The Democratic exodus outlasted the special session, but Abbott called another special session during which the Republican majority passed most of the Governor’s right wing agenda as Democrats trickled back to return to their families, businesses, jobs, and other obligations. Among the legislation that the Republicans passed overwhelmingly and that Abbott signed was the restrictive voting legislation that included restrictions or outright bans of mail-in voting, drive-through voting, and 24-hour voting days as well as expanding the “rights” of partisan poll watchers whose role in conservative circles seems as much to intimidate as to oversee. Republicans in Texas, and indeed around the country, remain hell-bent on going back to the future.
Democrats in the Texas legislature were once, of course, the conservative body, which pushed for white supremacy at the ballot box and everywhere in the public sphere. Back in 1923, the Democrat-dominated Texas State Legislature passed a law barring Black Texas citizens from participating in the state’s Democratic Party primary. This fairly routine act of voter discrimination – which came later than similar practices, whether de facto or de jure, across the South – began a legal battle that would last for more than two decades. A culmination of the legal struggle for an African American place at the ballot box, or so we once thought, would be the United States Supreme Court’s 1944 decision in Smith v. Allwright, which ruled that Texas’ ongoing discriminatory practices in the white primary were unconstitutional. But before Smith v. Allwright, the court had heard a series of challenges, providing inconsistent rulings.
In Nixon v. Herndon (1927) and Nixon v. Condon (1932), the Court had supported equal protection of Black voters. Herndon addressed a clear-cut case of state action, as the Texas legislature had in 1923 passed a law prohibiting Black voters from participating in primaries. In the decades since the passage of the 14th and 15th amendments, courts had consistently interpreted those amendments to prohibit only state action, which the 1923 law quite clearly represented. When the state scrambled to revise the law, allowing party executive committees to set membership qualifications (which the Democrats of Texas promptly did) the Court once again acted promptly in Condon. Both times the court cited the Equal Protection clause as justification to strike down the Texas laws.
But the Democrats of Texas were nothing if not tenacious in holding on to segregation. Soon after Condon, the Texas Democratic State Convention adopted a resolution banning African Americans from participating in the party’s primary. In the earlier cases, the petitioner had been Dr. L.A. Nixon of El Paso. This time Richard Randolph Grovey, a civil rights activist and owner of a successful barbershop who had promised “to use reason, the public press and the Courts to let the world see Texas Democracy as it really is,” challenged the new law. In Grovey v. Townsend (1937), the Court reversed its earlier decisions and declared the Texas Democratic Party a private organization able to establish its own membership rules. It is this decision that the court would overturn in 1944 in the most famous of the so-called “Texas Primary” cases, Smith v. Allwright. In recent decades, some historians have come to identify Allwright as being at least as significant as Brown v. Board of Education a decade later.
The best work on this particular topic comes from an article published in the April 1978 Southwestern Historical Quarterly. At the time of the publication of “The Elusive Ballot: The Black Struggle Against the Texas Democratic White Primary, 1932-1945,” Darlene Clark Hine was an assistant professor at Purdue University. She would go on to a storied career as one of the most vital historians of the Civil Rights Movement, the politics of the South, and African American history.
But the story Hine tells so well was also part of a larger tale of backlash against civil rights, opposition to voting rights, and politically-motivated disfranchisement that endures to this day. In very real ways, the history of voting rights in Texas might be the story of the backlash against voting rights in Texas. This story is still playing out in the Supreme Court, the United States Congress, the Texas legislature, and in the public political dialogue.
The “Backlash Thesis” comes from the legal historian Michael Klarman, who in a 1994 article in the Journal of American History argued that to a significant extent the most vital aspect of the Brown decision came in the response to it. It was the backlash, the massive resistance, including an uptick in violence against Black southerners, that caused a political change in American society and fueled much of the wave of change that took place in the next decade and more. One need look no further than the manufactured but nonetheless very real crisis presented by the way conservatives have framed and attacked Critical Race Theory as a way to oppose anti-racist pedagogy in public schools.
While the “backlash thesis” seems broadly true, it is hardly sufficient to explain the complexities of the Civil Rights Movement’s successes (and for that matter failures). As Klarman would argue in his monumental 2004 book, From Jim Crow to Civil Rights:
“[B]ecause constitutional law is generally quite indeterminate, constitutional interpretation almost inevitably reflects the broader social and political context of the times. ‘Equal Protection of the Laws’ does not plainly condemn school integration, and the Fifteenth Amendment’s ban on race-based qualifications to the suffrage does not plainly prohibit race-neutral voter qualifications that disparately affect blacks. In the absence of determinate law, constitutional interpretation necessarily implicates the values of the judges, which themselves generally reflect broader social attitudes.”
This dynamic of a social constitutionality animates the strange career of the Texas Primary cases, from Herndon to Allwright to the ongoing events of the third decade of the twenty-first century. And it also can help, at least in part, to show the slow revolution in Congress that resulted in the Civil Rights Act of 1964 and the Voting Rights Act of 1965 but also the legislation being undertaken by conservatives across the country today. Congress did not act in a vacuum. Republicans and Democrats, especially from the north, Midwest, and west coast, had seen and been influenced by a generation of bus boycotts and school integration crises, burning buses and snarling dogs, unloosed fire houses, and dead activists, bombed churches and protest marches. Further they were aware of another kind of backlash – that of the rest of the world that saw the blatant hypocrisies of a country proclaiming its superiority and trying to win hearts, minds, and loyalties in the Cold War.
One would think, then, that Congressional action, coupled with Supreme Court decisions, settled the question of the ability to vote as a fundamental right. And to be sure, to steal a phrase from veteran civil rights activist Charles McDew, “anyone who thinks things are not better today was not there then.” And yet any time the right to vote is under siege, for however small a population, we should be especially wary and ought to apply strict scrutiny.
We are living in a new era of backlash against voting rights, an era in which settled questions are no longer quite so settled because of swirling winds of political change pushing Texas politics (and not only Texas politics) steadily Trumpward.
Today politicians seem dead set on disenfranchising hundreds of thousands and of making voting more difficult for hundreds of thousands, perhaps millions, more, all on the pretext of solving a voter corruption problem that does not exist and that would not be solved by any of the remedies on the table. When Chief Justice John Roberts queried the proponents of maintaining the preclearance mandates by asking whether the lawyers really believed that Mississippi is more racist than the United States as a whole he clearly thought he was making a rhetorical point. And yet a brave lawyer would have answered something to the effect of “Clearly, demonstrably, and unquestionably ‘yes.’” The same could be said of Texas.
Some of those advocating rollback or erosion of the Voting Rights Act express their sentiment in what we might call the “Bull Connor is Dead” myth. This boils down to the idea that because racism no longer takes the face of Birmingham, Alabama’s white supremacist “Commissioner of Public Safety,” civil rights are no longer a significant issue. In the words of Edward Blum, a Visiting Fellow of the American Enterprise Institute, “Bull Connor is dead. We don’t need Section 5 any more.” Blum was referring to the extension of preclearance provisions of section 5 of the Voting Rights Act. It was this act that the Roberts Court struck down in Shelby County v. Holder, the Alabama case that caused Roberts to ask his question about Mississippi, to which the answer surely should have been “yes” had it been asked about Alabama as well.
Perhaps the actions of the Texas Democrats in July 2021 represent a backlash to the backlash. Nationally, Democrats should insist on requiring preclearance for all changes that might affect something as fundamental as voting rights. But the backlash to the backlash is apparently not strong enough yet. Voting rights legislation in 2021 appears to be stillborn, succumbing to the threat of a filibuster that nominal Democratic Senators Joe Manchin of West Virginia and Kyrsten Simena of Arizona refuse to eliminate. Thus in part the Democrats in the Texas legislature camped out in Washington to try to convince national Democrats to support voting rights protections.
Texas Democrats in 2021 tried to resist the jackhammer being wielded by their Republican colleagues deep in the heart of Texas. They could have used the help of their colleagues at the national level as voting rights in the Lone Star State run the risk of being as dead as Bull Connor even as his ghost clearly roams free.
Derek Charles Catsam is Professor of History and the Kathlyn Cosper Dunagan Professor in the Humanities at the University of Texas-Permian Basin and is Senior Research Associate at Rhodes University in Grahamstown, South Africa, where he spent 2016 as the Hugh Le May Fellow in the Humanities. He is the author of Flashpoint: How a Little-Known Sporting Event Fueled America’s Anti-Apartheid Movement (2021), Freedom’s Main Line: the Journey of Reconciliation and the Freedom Rides, (2009), Beyond the Pitch: The Spirit, Culture, and Politics of Brazil’s 2014 World Cup (2014) and Bleeding Red: A Red Sox Fan’s Diary of the 2004 Season (2005).
Darlene Clark Hine, Black Victory: The Rise and Fall of the White Primary in Texas (KTO Press, 1979).
Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford University Press, 2004).
Charles L. Zelden, The Battle for the Black Ballot: Smith v. Allwright and the Defeat of the Texas All White Primary (University Press of Kansas, 2004).
 Michael Klarman, From Jim Crow to Civil Rights, pp. 5-6.