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VOTING RIGHTS--FROM A BARBER TO A BRIDGE

Columbus to Selma

Speech to

Columbus, Georgia Bar Association

February 19, 2015

Clay D. Land

Chief U.S. District Judge

Middle District of Georgia

Later this year, we will celebrate the 50th

Anniversary of the enactment of the Voting Rights Act

of 1965. Many Americans have been exposed this year to

some of the history leading up to this landmark

achievement through the release of the movie SELMA. I

would like to talk to you briefly today about those

events as well as other events that happened right here

in the Middle District--before Selma. Then I will

conclude with a challenge to you as lawyers. So don’t

slip out early. If you’ve got a court appearance in

state court, I have the power to get you out of their

jail; they don’t have the power to get you out of mine.

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SELMA—THE MOVIE

This Sunday, February 22nd, the Academy of Motion

Picture Arts and Sciences is holding the 87th Academy

Awards Ceremony where Oscars will be presented to those

who have demonstrated cinematic excellence for the

preceding year. SELMA has been nominated for “Best

Picture,” and its anthem, “Glory” by John Legend, has

been nominated for “Best Original Song.”

The movie and the Motion Picture Academy have

created some controversy. Some historians have

criticized the movie’s depiction of President Lyndon B.

Johnson as a reluctant supporter of the Voting Rights

Act. And others have criticized the Academy’s snub of

David Oyelowo, the British actor who played Martin

Luther King, Jr. in the movie, and who was not

nominated for Best Actor.

I do not intend to wade into either of those

controversies; other than to say I enjoyed the movie

very much.

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I do want to talk about the character in the movie

played by veteran actor Martin Sheen. Based on my

recollection, Sheen only appeared in two scenes in the

movie and probably uttered fewer than 10 lines. But

without his character, the march from Selma to

Montgomery would not have happened. And I don’t think

it is speculation to suggest that passage of the Voting

Rights Act would likely have been delayed. Sheen

received no nominations for his bit part in the movie.

The character he portrayed would one day be awarded the

Presidential Medal of Freedom.

THE SELMA JUDGE

That character was United States District Judge for

the Middle District of Alabama Frank Minis Johnson, Jr.

Judge Johnson was first appointed to the federal bench

in a recess appointment by President Eisenhower on

October 22, 1955. He was subsequently nominated and

ultimately confirmed by the Senate on January 31, 1956.

At age 37, Johnson was the youngest federal judge in

the Country at the time.i

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Shortly after his appointment, Rosa Parks refused

to surrender her seat on a Montgomery bus to a white

passenger. This led to the historic Montgomery bus

boycotts.ii

While the Rosa Parks case was tied up in state

court, Amelia Browder, along with four other black

plaintiffs, filed a lawsuit in federal court

challenging Montgomery’s segregated bus seating. Judge

Johnson called for a special three judge district court

to consider the constitutional challenge. In a 2-1

ruling, Judge Johnson and Judge Richard T. Rives of the

Fifth Circuit Court of Appeals found the bus

segregation practice violated the Constitution’s 14th

Amendment Equal Protection and Due Process Clauses.

That ruling was upheld by the United States Supreme

Court.iii

This landmark ruling within his first year on the

federal bench would be followed by many more important

civil rights cases that would land in Frank Johnson’s

Montgomery chambers. Today I’d like to focus on what

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he did for Voting Rights in Selma in 1965; but before I

do that, I’d like to try to make the case that there is

a connection between the Middle District of Georgia and

Selma.

TWENTY YEARS BEFORE SELMA—PRIMUS E. KING

The 15th Amendment to the Constitution of the

United States was ratified in 1870, and it clearly

established the right to vote for citizens regardless

of their race or previous condition of servitude.iv

Notwithstanding the creation of this clear

constitutional right, many Southern states placed

obstacles in the path of black voters. These included

poll taxes, literacy tests, and the “All White

Democratic Primaries.” Georgia had variations of all

of these.

The All White Democratic Primary was particularly

problematic because it had the effect of excluding

black voter participation even if a black citizen paid

the poll tax, passed the literacy test, and was

generally registered to vote. Because Republicans did

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not nominate competitive candidates in state and local

elections in most Southern States, including Georgia,

all of the action occurred in the Democratic primaries.

The office holder was effectively chosen in those

primaries. Thus by denying blacks the right to vote in

the Democratic Primary, the white political

establishment effectively excluded them from

participating in the selection of their government

officials.

In 1944, civil rights activists in Columbus, led by

local physician Thomas Brewer, decided to challenge

“Georgia’s All White Democratic Primary.”v They

recruited a brave black barber, Primus E. King. Keep

in mind that this was almost a decade before the

Supreme Court decided Brown v. Board of Education and

the Montgomery bus boycotts; almost 15 years before the

lunch counter sit-ins in Greensboro, North Carolina and

the “Freedom Rides” to the South; and almost 20 years

before the “March on Washington” and the enactment of

the Civil Rights Act of 1964. There was no Student

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Non-Violent Coordinating Committee a/k/a SNCC; and

Martin Luther King, Jr. was a 15 year old student about

to enter Morehouse College in Atlanta.

On July 4, 1944, Primus King sought to cast a

ballot at the Muscogee County Courthouse in the

Democratic Primary Election. He was denied. After

King was denied the right to vote, Columbus attorney,

Oscar D. Smith, Sr., a white attorney, filed a lawsuit

on his behalf in the Columbus Division of the United

States District Court for the Middle District of

Georgia. Attorney Smith’s son, Oscar, Jr., would later

become a Superior Court Judge in Columbus. Harry S.

Strozier, a lawyer from Macon, also represented King.

At that time, the Middle District of Georgia had

one district judge, T. Hoyt Davis, who had his chambers

in Macon. Davis had just recently been appointed in

1945 by President Franklin Roosevelt. Primus King v.

Chapman would be one of the first cases he would hear

as a federal judge. After a hearing in Macon, Judge

Davis ruled in favor of King.vi The Supreme Court had

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previously ruled in another case out of Texas that such

racial discrimination in primaries was

unconstitutional. The Democratic Party tried to get

around that ruling and avoid the application of the

15th Amendment by arguing that the local Democratic

Party was a private organization and not sufficiently

connected to the state to implicate the Constitution.

Judge Davis rejected that argument, and his ruling was

affirmed by the Fifth Circuit.vii The U.S. Supreme

Court denied the petition for writ of certiorari.viii

Incidentally, a young 37 year old attorney from New

York City filed an amicus brief in support of King in

the Fifth Circuit. That attorney, Thurgood Marshall,

would go on to serve on the United States Supreme

Court.

Judge Davis’s courageous ruling sent shock waves

through the white political establishment. The ruling

came as the 1946 campaign for Governor was heating up.

Ellis Arnall was the incumbent Governor but could not

succeed himself under Georgia law. Former Governor,

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Eugene Talmadge, was the front runner for the Democrat

nomination. And he blasted the ruling, stating “If the

door is once opened and we allow the Negro to

participate in our primaries, the next move will be to

allow them in our schools with our white children.”

Talmadge continued, “The next move would be a law as we

have in some states allowing them to stop in the same

hotels and restaurants with white people.” Expressing

his disdain for Judge Davis, Talmadge described Davis’s

ruling as “the interracial uplifter’s advancing the

Negroes higher than his limited civilization

justifies.”ix Unfortunately, this racist rhetoric

foreshadowed heightened obstinacy on the part of many

whites to deny blacks the right that Judge Davis’s

order sought to protect.

CONTINUED DENIAL OF VOTING RIGHTS

Notwithstanding rulings by federal judges like

Judge Davis, blacks efforts to vote continued to be

stymied by poll taxes, literacy tests, and sheer

intimidation from white supremacists like the Ku Klux

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Klan and some representatives of law enforcement.

These deprivations were particularly aggressive during

the 1946 Georgia Governor’s race. Although Georgia had

abolished the poll tax in February 1945 during the

Arnall administrationx and the Democratic Party could

not expressly prevent blacks from voting in light of

the Primus King ruling, many voter registrars continued

to prevent black registration with unfair registration

tests and with the purging of black voters from the

rolls.xi United States Attorneys in Georgia, including

John Cowart of the Middle District, conducted

investigations of the purging of black voters.xii

The racially charged atmosphere surrounding black

voting rights in 1946 also resulted in violence with

two notorious lynchings occurring in the Middle

District. One happened in Taylor Countyxiii

and the

other in Monroe, Georgia in Walton County, which was

located in the Middle District’s Athens Division. The

Walton County lynchings, which involved the killing of

four blacks at the wooded bridge at Moore’s Ford

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Crossing over the Apalachee River, received national

attention. The FBI got involved in the investigation

and Judge Davis convened a federal grand jury, but

three weeks after being empaneled, the grand jury

announced on December 3, 1946 that it could not

establish the identity of the murderers. Judge Davis

released the grand jury, but not permanently; they were

subjected to being recalled if additional evidence

became available. They were never recalled.xiv

Incidentally, Eugene Talmadge won the Democrat

Primary in 1946, but he died before taking office. His

death set off one of the most controversial episodes in

Georgia history, sometimes referred to as the “Double

Governor Dispute,” in which Gene Talmadege’s son,

Herman, and Lt. Governor M.E. Thompson, both claimed

the office. Knowing that his father was sick, the

Talmadge forces cast some write in votes for Herman in

the General Election just in case Gene Talmdage did not

make it to inauguration day. Two other persons also

received write in votes. The Talmadge forces took the

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position that the Legislature should elect the Governor

from the top two vote-getters who were still living,

which included Herman. And the political and legal

battles began. State Repesentative Bob Elliott from

Columbus was Herman Talmadge’s tactician on the floor

of the House, and he helped secure the election of

Herman Talmadge by the Legislature. But the Georgia

Supreme Court thought differently and ruled that Lt.

Governor Thompson was the lawful Governor. Herman

Talmadge defeated Thompson two years later in the next

election for Governor and eventually went on to become

U.S. Senator.xv As United States Senator, he was

instrumental in the appointment of Judge J. Robert

Elliott to the federal bench in the Middle District in

1962, fifteen years after the “Double Governor

Dispute.”

During the 1950s, the Justice Department continued

to try to enforce blacks’ voting rights county by

county. In 1954, twenty black citizens from Randolph

County, just down the road from Columbus, filed suit in

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federal court against county voting officials after

being excluded from the county voter registration list.

Judge William Augustus Bootle, who had recently been

appointed Middle District judge, was assigned the case.

He ruled in favor of the plaintiffs and became one of

the first federal judges in Georgia to hold that the

recently decided Brown v. Board of Education decision

authorized a “class action” in such cases.xvi

Judge Bootle’s civil rights rulings, which included

the desegregation of the University of Georgia, earned

him the scorn of many Georgians during that era. After

he ruled that the Americus City School Board could not

arbitrarily deny admission to children from families

who lived on a religious oriented, racially integrated

Sumter County commune known as Koinoinia Farm,xvii

white

families hung him in effigy outside the federal

courthouse that was located in Americus at the time.xviii

(I’ve been accused of “treasonous conduct” and

challenged to a duel when I refused to declare

President Obama ineligible for office due to his

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alleged country of origin. But never hung in effigy,

at least as far as I know).

THE ALBANY MOVEMENTxix

Starting in 1960, voter registration efforts began

picking up steam. And in 1961, young activists with

the Student Nonviolent Coordinating Committee (SNCC),

set up shop in Albany, which was located in the Middle

District. They intensified voter registration efforts

there, but they also planned to make Albany the

epicenter for a broad based attack on continued racial

segregation. Dr. King was brought in to give the

Albany movement the national profile it needed to

succeed, and he did in fact spend some time in the

Albany jail. But due to infighting among the civil

rights activists and a shrewd Albany Police Chief,

Laurie Pritchett, who trained his officers to avoid

brutality and blood shed, the Albany movement did not

achieve its organizers’ goals.

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During this movement, another Middle District

Judge, J. Robert Elliott, was appointed by President

John F. Kennedy in January 1962 to succeed Judge Davis

who had taken senior status. In what would become one

of his most controversial judicial acts, Judge Elliott

issued a temporary restraining order preventing Dr.

King from participating in a protest march in Albany.

That ruling was subsequently overturned by Judge

Tuttle of the Fifth Circuit who stayed the restraining

order until Judge Elliott held a hearing on the

merits.xx At the center of that legal battle, as well

as many other civil rights cases during that era, was

C.B. King, a prominent black attorney from Albany. The

federal courthouse in Albany now bears his name. Years

later Judge Elliott said that he issued the order

because credible threats had been made that if Dr. King

marched that day, he would have been killed.xxi

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KING LEAVES ALBANY FOR BIRMINGHAM

After the Albany movement failed to meet his

expectations, Dr. King moved on in 1962 to Birmingham.

Learning from the mistakes in Albany and taking

advantage of the brutality of Birmingham’s Commissioner

of Public Safety, Bull Connor, he was able to capture

the attention of the nation in 1963 when Americans in

their comfortable living rooms viewed television news

footage showing young black children being attacked by

dogs and blasted with fire hoses. These efforts

culminated in the March on Washington later that year

and the passage of the Civil Rights Act of 1964.

While the Civil Rights Act was an enormous step

toward racial equality, it did not address Voting

Rights directly. And that piece of unfinished

business, left over from the Albany Movement of 1961

and 1962, needed to be completed. As Dr. King

described it, “the Civil Rights Act of 1964 gave

Negroes some part of their rightful dignity, but

without the vote, it was dignity without strength.”xxii

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The march toward “strength” would occur in a small

town, fifty four miles from the Alabama Capitol—a town

on the banks of the Alabama River, Selma.

SELMA AND THE EDMUND PETTUS BRIDGExxiii

The first of three voting-rights marches from Selma

to Alabama’s Statehouse in Montgomery ended in violence

on March 7, 1965, when deputies beat protesters as they

crossed the Edmund Pettus Bridge. The press labeled it

as “Bloody Sunday.” King was not present for that

march. But he returned to Selma a few days later for

another march. Thousands of protesters, including

members of the clergy from around the Country and a

substantial number of white participants, gathered for

this second march. But King decided that things did

not feel right on that day. And he canceled the march,

much to the dismay of many of the protesters.

He regrouped and concluded that for the march to

truly be successful and for his fellow protesters to be

protected, he needed to allow the legal process to play

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out in the only place he thought they would be treated

fairly--the federal district court in Montgomery,

Judge Frank Johnson’s court. They had previously asked

Judge Johnson to halt the police harassment. But he

refused to grant injunctive relief without a hearing.

He also wanted to make sure that any order he issued

would be enforced by the Executive Branch, the

President.

After learning that President Johnson would

nationalize the Alabama National Guard, Judge Johnson

permitted King and the marchers to cross the bridge.

His order barred Alabama authorities from “arresting,

harassing, thwarting or in any way interfering with the

effort to march from Selma to Montgomery.” The

protesters began their 5 day, 54 mile journey down U.S.

Highway 80 to Montgomery at the now safe Edmund Pettus

Bridge in Selma. They were joined along the way by

thousands from around the country. They reached

Montgomery on March 24 and approximately 25,000

gathered in front of the State Capitol building on

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March 25 to hear Dr. King deliver his eloquent speech

for Voting Rights.

Public support galvanized behind voting rights.

Within a few months, Congress passed the Voting Rights

Act of 1965. President Johnson signed it into law on

August 6, 1965.

JUST DOING MY DUTY

Judge Johnson, whom Dr. King lauded as a judge who

had given “true meaning to the word justice,” received

many death threats during his career. The Ku Klux Klan

labeled him “the most hated man in Alabama.” A cross

was burned on his lawn, and a firebomb damaged his

mother’s house. He had consistent protection from the

U.S. Marshal Service for 15 years.xxiv

Years after his historic rulings, Judge Johnson was

asked whether he considered himself to be an agent for

social change and justice. He replied, like the Judge

he was: “My only goal was to enforce the Constitution.

The actions of the judges sitting on the federal bench,

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hasn’t been for the purpose of effecting social change.

I approached it strictly from a legal standpoint. I

have no interest in social change, as a judge.”xxv

I suspect that Judge T. Hoyt Davis felt the same

way when he courageously declared the All White

Democratic Primary unconstitutional in 1945. He may

have sympathized with Primus King. But that is not why

he did what he did. These judges did what they did

because it was their duty to follow the law. And they

did not shirk from that duty, even though their rulings

would threaten their personal safety and cause them to

be socially ostracized. Their courageous devotion to

duty helped change America.

CONCLUSION

Interesting history. But what does it say to us

today, as judges and lawyers. I hope it inspires us.

For we judges, may it remind us that our duty to the

law demands that we rule without fear or favor, without

regard to the personal consequences.

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For lawyers, hopefully it reminds you that you

belong to a noble profession. One that has the power

to vindicate legal rights that otherwise may go

unprotected. Primus King had the “legal right” in 1944

to cast his vote in the Democratic Primary. The 15th

Amendment to the Constitution said he did, since 1870.

But it took a lawyer willing to file a lawsuit in the

Columbus Division of the Middle District of Georgia to

make it so. Those twenty black citizens in Randolph

County had the “legal right” in 1954 to be counted as

registered voters. But it took a lawyer filing a

lawsuit to make it so. And those brave protesters in

Selma in 1965 certainly had the “legal right” to cross

the Edmund Pettus Bridge and march to Montgomery. But

courageous lawyers had to file a lawsuit to make it so.

Legal rights, without a means to enforce them, are

simply words on the page. Lawyers have long understood

that the privilege of practicing law carries with it

the duty to make those words on the page a reality.

Today, if a poor person is hurt in a car wreck, there

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will be 100 lawyers waiting to give him their card.

But if that same poor person’s legal rights have been

violated in a manner that does not lend itself to a

contingent fee, help is harder to find. A noble

profession understands this dilemma and does something

about it. But I have now gone to meddling.

I leave you with this. The next time you hear

someone tell a joke about lawyers or judges, putting

down our profession, don’t chuckle defensively. Tell

them you’d like to buy them a cup of coffee and then

tell them about a barber and a bridge, places like

Columbus and Selma, judges like Davis and Johnson, and

yes lawyers. Oh yes, don’t forget the lawyers!

Thank you.

i Frank M. Johnson, Jr., Encyclopedia of Alabama (Jack Bass),

http://www.encyclopediaofalabama.org/article/h-1253? (last visited 2/8/2015);

see also Federal Judicial Center Judge Biographies, Frank M. Johnson, Jr.,

http://www.fjc.gov (last visited 2/18/15) ii Id. iii Browder v. Gayle, 142 F.Supp. 707 (D.C. Ala. 1956) affirmed 352 U.S. 903

(1956)

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iv United States Constitution, Amendment XV, Sec. 1 states “The right of

citizens of the United States to vote shall not be denied or abridged by the

United States or any State on account of race, color, or previous condition

of servitude.” v For a detailed description of the events surrounding the challenge to the

Georgia All White Democratic Primary, see Novotny, Patrick “This Georgia

Rising: Education, Civil Rights, and the Politics of Change (Mercer

University Press), pp. 151-172. vi King v. Chapman, 62 F. Supp. 639 (MD GA 1945) vii Chapman v. King, 154 F.2d 460 (5th Cir. 1946) viii Chapman v. King, 327 U.S. 800 (1946) ix Novotny, Patrick “This Georgia Rising: Education, Civil Rights, and the

Politics of Change (Mercer University Press), p. 164. x Id at 150. xi Id at 172-192. xii Id at 186-87. xiii Id at 198-202. xiv Id at 202-215. xv Id. at 226-261. xvi William Bootle, New Georgia Encyclopedia (Keith Hulett),

http://www.georgiaencyclopedia.org/articles/history-archaeology/william-

bootle-1902-2005 (last visited 2/8/2015) xvii Wittkamper v. Harvey, 188 F.Supp. 715 (M.D. GA 1960). xviii William Bootle, New Georgia Encyclopedia (Keith Hulett),

http://www.georgiaencyclopedia.org/articles/history-archaeology/william-

bootle-1902-2005 (last visited 2/8/2015) xix The historical information in this section is taken from several sources,

including Branch, Taylor, “Parting the Waters, America in the King Years

1954-63” (Simon & Schuster 1988); “Albany Movement,” New Georgia Encyclopedia

(Lee W. Formwalt), http://www.georgiaencyclopedia.org/articles/history-

archaeology/albany-movement (last visited 2/9/2015); American Experience,

Eyes on the Prize, American Civil Rights Movement 1954-1985, “A Volatile

Time, 1962,”

http://www.pbs.org/wgbh/amex/eyesontheprize/sources/ps_abany.html (last

visited 2/9/2015). xx For a full explanation of the TRO episode and a description of the “Albany

Movement, see Kelly v. Page, 335 F.2d 114 (5th Cir. 1964). xxi Houston, Jim, “Judge Elliott Reflects on Career,” Columbus Ledger Enquirer,

July 4, 2006. xxii Martin Luther King, Jr. Address at Conclusion of Selma to Montgomery

March, March 25, 1965, found at http://mlk-

kpp01.stanford.edu/index.php/encyclopedia/documentry/doc_address (last

visited 2/15/2015) xxiii See generally Selma, Encyclopedia of Alabama (Herbert J. Lewis),

http://www.encyclopediaofalabama.org/article/h-1635 (last visited 2/15/2015);

Frank M. Johnson, Jr., Encyclopedia of Alabama (Jack Bass),

http://www.encyclopediaofalabama.org/article/h-1253? (last visited 2/8/2015);

The Third Branch News, “Court’s Legacy Intertwined with Martin Luther King

Jr.’s,” United States Courts, http://news.uscourts.gov (last visited

1/15/2015) xxiv The Third Branch News, “Court’s Legacy Intertwined with Martin Luther King

Jr.’s,” United States Courts, http://news.uscourts.gov (last visited

1/15/2015) xxv Id