Thelton Henderson: Sixty years after the Voting Rights Act, the struggle continues

Sixty years ago, in March 1965, police in Selma, Alabama, violently suppressed a demonstration demanding full voting rights for Black people. The police brutality so shocked the nation that the Voting Rights Act — a landmark of civil rights law — passed just months later.

Thelton Henderson, as an attorney in the Department of Justice, was a witness to that segregated era in the Old South. Now, as a retired federal judge and a visiting professor at UC Berkeley Law, Henderson warns that powerful American forces are working again to restrict voting by people of color and by economically disadvantaged people.

Contemporary vote suppression often takes a more subtle form: voter ID laws, aggressive efforts to purge voting rolls and new limits on voting by mail. Texas and other red states are trying to gerrymander congressional districts to enhance Republican power; California and other blue states have countered with their own gerrymandering. The U.S. Supreme Court, meanwhile, has signaled a willingness to remove one of the remaining pillars of the Voting Rights Act of 1965 — a possibility that alarms the 91-year-old jurist. 

“Getting rid of the Voting Rights Act, dismantling it little by little — we’ll go back to the days preferred by those who don’t want the descendants of slaves to have any voting rights or any power in this country,” Henderson said in an interview. “That’s what I see happening.”

Henderson graduated from Berkeley Law in 1962 and has established himself as an American legal icon. He knew the Rev. Dr. Martin Luther King. He established programs to recruit people of color into legal careers. He served as a U.S. District Court judge from 1980 to 2017, issuing major decisions on environmental protection, same-sex marriage, sexual harassment, police misconduct and other critical issues. Earlier this year, the Thelton E. Henderson Chair in Civil Rights Law was established with a $6 million gift from Bob and Colleen Haas. 

In an interview with UC Berkeley News, Henderson took the long view of voting rights, reflecting on how the conflicts and challenges of the past persist across generations, requiring a constant effort to protect them. 

UC Berkeley News: The U.S. Department of Justice sent poll monitors to California and New Jersey for elections earlier this month. Texas and other Republican-dominated states are moving aggressively to make voting more difficult. The U.S. The Supreme Court is considering a case that could further undermine the Voting Rights Act. How do you assess these developments? 

Thelton Henderson: I think the goal is to turn the clock back to the old days. Go all the way back, look at the history of voting in this country. There are those who want us to go back to the times when white males or propertied white males were the only ones allowed to vote, and they certainly didn’t want slaves or former slaves to vote.

There’s been this tug-of-war within the history of this country. I’ve always felt that at the end of the Reconstruction period, after the Civil War, when they finally pulled the troops out of the Southern states, they didn’t really solve the problem. So it’s still lingering. 

There’s this continuing struggle between the agrarian South and the industrial North over who votes. It’s the history of this country — and it’s ongoing. 

Provisions of the landmark 1965 Voting Rights Act required states to draw congressional districts that more fairly reflected the number of Black residents. But a case pending before the Supreme Court, Louisiana v. Callais, would relieve states of that requirement. The court’s conservative justices seem to agree. If they further erode the Voting Rights Act, what implications do you foresee?

If we diminish the Voting Rights Act, you’re going to have less of a vote, less of a voice, by racial minorities and by people less fortunate financially.

Thelton Henderson

We’d have gerrymandering that would limit the voting powers of Black people tremendously. 

A third of Louisiana’s population is Black. There are all kinds of ways to restrict their voting influence. Let’s say there are ten districts. You could put all the Black people in two districts. So they’re 20% — they have 20% of the representatives rather than 33%, which more accurately represents their power. 

Or you could spread them out in all 10 districts so that they don’t have real controlling power in any of them. There are many other ways. And I would predict — I would lay money on it — that this is what will happen.

Those who would like to see the Voting Rights Act diluted or ended would say, ‘We’ve come a long way toward equality, and it’s no longer necessary in the United States to draw racially gerrymandered districts in favor of Black people, or to advantage Latino people.’ How would you answer that? 

It’s a variation of the reverse discrimination argument. And it ignores a huge reality in this country. That argument says: ‘Okay, you’ve been shackled, you’ve been limited, your education has been limited, your income has been limited, but you’re equal.’

Let me use an athletic analogy. You’ve not had exercise, you’re not in shape, but now you’re free to go participate in the Olympics. So just line up and we’ll see who gets to the 100-yard mark first. Well, you know who’s going to get there first. That’s the problem with their argument. 

If we diminish the Voting Rights Act, you’re going to have less of a vote, less of a voice, by racial minorities and by people less fortunate financially. They all should have a vote and if you change that, we’ll never have Barack Obama for president in this country again. There are still people horrified that we had Barack Obama as president. 

We’ve done things in law to help erase the disadvantages some people have faced. And if we are truly a democratic country, where it’s one person, one vote, it ought to mean one person, one vote. 

These people are trying to limit that, so that it’s not one person, one vote. They’re saying, ‘More power to some people than others. More power to those who we agree with.’ They’re saying, ‘These other people are ignorant and we don’t want them at the polls having a say in the political process.’

Early in your career you were an attorney in the Department of Justice Civil Rights Division, and you were working on voting rights cases in the Deep South. Is it appropriate to compare what was happening then with what’s happening today? 

I think it is. There’s an apt analogy to what was happening then. 

The civil rights division was relatively new in those days. We had 37 attorneys, and we were divided into three states: Louisiana, Mississippi and Alabama. We were filing voting rights suits in those cases. We would file one voting suit in a county or in an area, and we would usually win it, although we didn’t always win it. When you had a particular federal racist judge on the case, you might not win. 

In a case like that, if you won, there’d be an order saying: You cannot do that. That’s all it did.  It was really not a very powerful tool. When the Voting Rights Act became law in 1965, that really gave Black people some voting rights. 

Getting rid of the Voting Rights Act, dismantling it little by little — we’ll go back to the days preferred by those who don’t want the descendants of slaves to have any voting rights or any power in this country. That’s what I see happening.

It’s stunning to see it coming from the top, from the Supreme Court. To me, it’s foolish to say there’s no need, that the time for restrictions on the southern states is over, that they’re obsolete. They are not obsolete. 

Think back to the spirit or the mood of that time in the South. You had the federal government under the Kennedy administration engaged in these states where Jim Crow was deeply entrenched and very stubborn. As you were trying to expand voting rights, what was their reaction? 

It was very strong, and indeed it was often very, very violent. It took its form in many ways: ‘We’ll just control the recently liberated Black by poll taxes and literacy tests and all of that.’  And that’s what we were fighting with our lawsuits. 

And if that doesn’t work, there’s also the Klan. So the Klan will terrorize some of them, scare them, let ’em know that they’d better not vote. And then others hit them financially. ‘Oh, you work for this white family, you’ve tried to vote — you’re fired.’ So there were all of these techniques that they were using back then.

Is it correct to say that such patterns led to passage of the Voting Rights Act of 1965?

As a lawyer with the Civil Rights Division, one of the most powerful memories I have is of working in Louisiana. I got a call from John Doar, second in command of the division, saying, ‘I want you to get over to Birmingham [in Alabama]. There’s something going on there.’ 

We’ve made remarkable progress in recent years, but I think we’re at a point now where the other side has more leverage.

Thelton Henderson

They were getting into the Children’s Crusade [in May 1963]. Martin Luther King couldn’t get sufficient adults to have a march — they had been intimidated, they risked losing their jobs. So the organizers decided to get children. 

The day I got there, King was at this church, and I went immediately to the church, and I saw these little kids — 12, 13, 14, 15 — some of them in bare feet, some of them in overalls. Every one of those little kids had a face towel with a toothbrush and toothpaste wrapped in it, in their pocket. They were ready to go to jail. It just brought tears to my eyes to see their bravery. They were there to do their part. 

King’s objective, what he was trying to do nationally, was bring this to the eyes of the rest of the country or even the rest of the world. 

That idea was maximized at the march across the Edmund Pettus Bridge in Selma [in March 1965]. John Lewis and the others marched across the bridge peacefully and got whacked in the head — and the nation was horrified by it. I think that was the single most important event to bring about the Voting Rights Act of 1965. 

Does it surprise you that voting rights remain a battlefield in the United States today? 

It should surprise me, but knowing the realities, it doesn’t. I look at the history, and now we’re fighting it at a broader political level, especially in the MAGA era with [President Donald] Trump seemingly trying to take us back to a different era. 

There’s always been that fight in this country. We’ve made remarkable progress in recent years, but I think we’re at a point now where the other side has more leverage. They’re pushing us back — and they’re winning this war right now. 

So it doesn’t surprise me. It’s part of the ongoing struggle. 

Efforts to undermine the Voting Rights Act could be seen as a part of the strategy that some political scientists call “stacking the deck.” You expand voter ID laws, purge voting rolls aggressively, limit voting by mail. But some people say we need these measures to prevent voting fraud. How do you assess such arguments? 

We need protection against fraud, no question about that. But there are many ways to do it without limiting the rights of people who don’t intend to commit fraud or who are simply trying to exercise their vote. We need protections against fraud, but they ought to be logical means to protect elections that don’t go beyond the simple effort to eliminate fraud from the process. 

These acts go way beyond protecting against fraud because they only limit a certain group of the population. It’s fraudulent — a false excuse for limiting the vote. 

The federal justice system seems divided by the same political disagreements and passions that divide our politics and our voters. Is there any hope that the federal courts could rise above these partisan divisions and help to keep us whole as a nation? 

There is hope, and up until recent times, it essentially worked. 

But now we have a president who’s saying, ‘Okay, I’m going to appoint you to the Supreme Court and you’re going to do what I say.’ And that’s a whole lot different from having diversified people who come out with different conclusions, but well-intentioned and well-meaning interpretations of the same thing. 

The problem we have now is appointing people who are biased to begin with and have a mission to carry out those biases rather than bringing different views and sometimes coming to different conclusions. We’re putting people on the court who have one goal and that’s to carry out the mission of the person who appointed them. 

I can’t help but ask: Do you get discouraged when you see these efforts and success in rolling back voting rights and civil rights? 

I do get discouraged. Oh my gosh, I thought I could relax and that my son and my grandson would have a better future than it now looks like they will have. But okay, we’ve got to roll up our sleeves.

I’m getting older but I’ve got to go fight some more. That’s what we need. We need everybody who’s offended by this to pick up their tools and join the battle again and keep working to push us forward. 

The interview has been lightly edited for clarity and length.