By Marc Elias
May 25, 2021
In 1964, civil rights leader Fannie Lou Hamer had a bold idea. A Black woman, she would run for Congress in the Democratic primary in Mississippi. Her opponent would be the pro-segregationist, white incumbent Jamie Whitten. At the time, Black citizens comprised 52.4% of the congressional district’s population, but less than 3% of its registered voters.
While she lost the primary 35,218 to 621, she set in motion one of the most consequential House election contests in history. And she may well have set the stage for the use of that process to fight voter suppression today.
After losing the primary, Hamer, along with Annie Devine and Victoria Gray, unsuccessfully sought to qualify for the November 1964 congressional ballot as third-party candidates under the banner of the Mississippi Freedom Democratic Party. Then, after the general election, Hammer, Devine, Gray and the Mississippi Freedom Democratic Party filed an election contest in the U.S. House challenging the seating of the Mississippi congressional delegation on the grounds that their elections were marred by voting discrimination and unconstitutional disenfranchisement of Black voters.
The election contest was an evidentiary rout. Hamer and her team compiled 10,000 pages of witness testimony from more than 400 people. Depositions were taken in 30 Mississippi counties and hearings were held in 12 states. All of it told the story of disenfranchisement of Black voters in the 1964 elections by means of refusals to register Black voters, physical intimidation and other forms of overt, state-sponsored discrimination. The white congressmen claimed that they had no “personal knowledge” of voting discrimination taking place in Mississippi and complained bitterly of their lack of resources and inability to mount an evidentiary defense.
But what the congressmen lacked in evidence they more than made up for in the composition on the committee considering the challenge. After a 3-hour hearing — closed to the public, press and even other members of Congress — the House Administration Committee, which was dominated by southern Democrats, voted 20-5 to recommend that the House dismiss the contest.
Among the reasons for dismissal was the fact that Hamer and the others could not show that they would have won the election even if Black citizens had been permitted to register and vote. But this issue had come up before — in the late 19th century. Between 1867 and 1901, the House decided more than 40 contests where violations of the 14th and 15th Amendments were found to be sufficient grounds for a contest to prevail, even without evidence that the election outcome would be different.
As the matter proceeded to the House floor for a vote in September 1965, some members — particularly those from the northeast — were under pressure to support the election contest. The images from Freedom Summer and the brutality of southern states towards Black citizens trying to register to vote were fresh in members’ minds. So too was the recently enacted Voting Rights Act (VRA).
It turns out that the passage of the VRA in August 1965 presented an opportunity for a “compromise” that would allow the Mississippi delegation to retain their seats. Opponents of the election contest made a two-part argument.
First, they argued that the discriminatory conduct was only rendered illegal in 1965, nine months after the challenged elections. They noted that no court had struck down Mississippi’s voting laws as unconstitutional before the November 1964 election, even though Mississippi’s governor had accepted in 1965 that they did, in fact, violate the 15th Amendment. They further argued that the new VRA would have made illegal the tactics used in the 1964 elections to prevent Black voters from registering and voting. In other words, they argued that the new rules as of August 1965 should not be retroactively applied to 1964 elections and thus the contest should be dismissed.
The second — and most critical — part of their argument was that, moving forward, violations of the VRA and 15th Amendment would be sufficient grounds to maintain and prevail in an election contest regardless of proof of the number of affected voters or the margin of the election.
The majority thus sought to essentially block the challenge in 1964 by promising that from then on discriminatory voting laws and practices would be sufficient grounds to overturn an election in the House.
As one member from New Jersey said while announcing his support to dismiss the contest: “The record of this debate…will constitute a clear precedent that the House of Representatives will no longer tolerate electoral practices in any State or district which violate the legal or constitutional rights of citizens to register, vote, or to become candidates for office.” The House will “use the power to unseat in the future, if there is corroborative evidence of the violation of the Voting Rights Act of 1965.”
Ultimately the House voted in favor of permanently seating the Mississippi congressmen and against Fannie Lou Hamer and her effort by a vote of 228 to 143. The concession on future violations of the VRA and the Constitution worked.
That should not be an empty promise.
As Republican legislatures enact new voter suppression laws, Congress should reaffirm the House’s promise in 1965 to refuse to seat, or to unseat, members who benefit from discriminatory voting laws. It is beyond question that the House has the absolute right to adopt such a rule — since it alone is the “Judge of the Elections, Returns and Qualifications of its own Members.” So, the only barrier to this approach is the House itself and its reticence to invoke its constitutional power.
If ever there was a need for it to do so, it is now.
Republicans in Arkansas, Florida, Georgia, Iowa and Montana should be on notice now that members’ elections are subject to House contest if either a court or the House determines that the member benefitted from discriminatory voting laws. And before they pass their own discriminatory laws, states like Texas, Ohio and New Hampshire should consider that the result could be the unseating of their Republican congressional delegations.
The right to vote is under attack. The House should be reminded of Fannie Lou Hamer’s courage in 1964. She may have lost that election contest, but she won a valuable tool for fighting voter suppression that is still relevant today.