A brief history of the Ku Klux Klan Acts: 1870s laws to protect Black voters, ignored for decades, now being used against Trump

Former President Donald Trump with his attorneys inside the courtroom during his arraignment at the Manhattan Criminal Court on April 4, 2023. Seth Wenig/AFP via Getty Images^[9]

Retreat from democracy

When the Ku Klux Klan tried to steal the 1872 presidential election by killing and intimidating^[10] newly enfranchised Black men, federal troops swooped into South Carolina and arrested hundreds of Klansmen. The Department of Justice secured convictions^[11] in 140 cases by using the law that is being used to prosecute Trump.

Congress had to expand the attorney general’s staff into an entire department of government^[12] to handle the excessive case load.

The Klan prosecutions worked.

The 1872 election^[13] was relatively free and fair. In South Carolina, where the Black population outnumbered the white population, President Ulysses Grant, who had commanded the Union Army in the Civil War and led it to victory^[14] over the Confederacy, won with 75% of the vote.

After Grant was reelected, many champions of Black rights lapsed into what historians often characterize as a moral fatigue. According to historian Eric Foner’s “Reconstruction: America’s Unfinished Revolution^[15],” a “resurgence of overt racism” in the North triggered a “retreat from Reconstruction.”

The turning point^[16] was at Colfax, Louisiana.

Just before Easter in 1873, federal soldiers steamed up Louisiana’s Red River to investigate reports of yet another wave of white terrorism against Black citizens.

As later described by Col. T.W. DeKlyne^[17], as the soldiers approached the town of Colfax, they saw neglected neglected crops and abandoned farmhouses. They followed a trail of corpses to the charred, smoking remains of the courthouse, whose grounds were strewn with more dead bloating in the sun. Some were burnt. Others had been shot, execution style, in the back of the head.

In his history of the Colfax massacre^[18], journalist Charles Lane estimated that between 62 and 81 Black men were killed, most after they surrendered to the white militia.

Despite the bloodshed, Louisiana officials did nothing to hold the murderers accountable.

But federal attorneys indicted 98 men. Nine stood trial, including one William Cruikshank^[19], who Lane described as the “burly, self-confident” plantation owner who had supervised the executions.

Cruikshank was convicted not of murder but of the federal crime of conspiring to violate^[20] the civil and voting rights of Americans – the same crime that Trump is charged with.

The case^[21] was appealed to the Supreme Court, where justices heard all sorts of arguments on the authorities of state and federal governments to enforce voting rights laws. But the real issue was whether the federal government, 11 years after the end of the Civil War, still had the will to protect the civil rights of Black people.

In this illustration, Gen. Ulysses S. Grant, left, accepts the surrender of Gen. Robert E. Lee. Getty Images^[22]

The Supreme Court set William Cruikshank free, and white supremacists established racist regimes in every Southern state for nearly 100 years thereafter.

According to Nicholas Lemann, professor emeritus at Columbia University, the Civil War did not end in 1865 at Appomattox Court House^[23] – the Virginia village where Confederate Gen. Robert E. Lee surrendered his forces to Union Gen. Ulysses S. Grant.

The last battle^[24], he contends, was fought at Colfax, and the South won. The South staged unfair elections for the nearly the next 100 years. Not until the Voting Rights Act of 1965^[25] did the federal government signal it would force states to hold free and fair elections.

Civil War amendments today

The latest retreat by the Supreme Court from defending Black civil rights might have begun in 2013, in its Shelby County v. Holder^[26] ruling, in which the justices abolished a key part of the 1965 Voting Rights Act that ensured federal oversight of voting rules in areas with a history of discrimination. The 5-4 majority held that states could be trusted to guarantee citizens’ voting rights.

Writing in dissent, Justice Ruth Bader Ginsburg compared enforcing the Civil War amendments to “battling the Hydra,” the multiheaded monster that sprouted new heads after one was defeated.

In North Carolina, for instance, the Republican lawmakers tried to put what is known as the “independent state legislature theory” into practice. That theory^[27] holds that state legislatures are the supreme authority in federal elections.

But in the Moore v. Harper^[28] case, Chief Justice John Roberts disagreed and wrote in the 6-3 majority opinion on June 27, 2023, that the “federal court must not abandon their own duty to exercise judicial review” over elections.

Given this long history of advance and retreat, it’s not surprising, then, that special counsel Jack Smith, in his use of a law to prosecute Trump that dates back to the Reconstruction Era’s laws protecting the Black vote, has reasserted the Department of Justice’s power to enforce the Civil War amendments.

Authors: Joseph Patrick Kelly, Professor of Literature and Director of Irish and Irish American Studies, College of Charleston

Read more https://theconversation.com/a-brief-history-of-the-ku-klux-klan-acts-1870s-laws-to-protect-black-voters-ignored-for-decades-now-being-used-against-trump-202923

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