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BOOK REVIEW SEEKING JUSTICE

COUNT THEM ONE BY ONE: BLACK MISSISSIPPIANS FIGHTING FOR THE RIGHT TO VOTE. BY GORDON A. MARTIN, JR. 2010

REVIEWED BY GARY S. KATZMANN* pic struggles give rise to great books. The struggle for civil rights in this country evidences this truth. Appropriately, books have documented the sweep of the civil rights movement1: the challenges of leadership,2 the courage of those who sought justice,3 the role of government lawyers,4 the work of the public interest bar in advocating for civil rights,5 the role of judges in the legal fight,6 the impact of judicial
*Associate Justice, Massachusetts Appeals Court. Prior to joining the Massachusetts Appeals Court in 2004, Justice Katzmann served as an Assistant United States Attorney in the District of Massachusetts and as an Associate Deputy Attorney General in the Department of Justice. Justice Katzmann was a Lecturer on Law at Harvard University, a Research Fellow and Project Director at the Harvard Kennedy School of Government, and has taught at the Russian Procuracy Institute. He is the author of INSIDE THE CRIMINAL PROCESS (1991) and editor and co-author of SECURING OUR CHILDRENS FUTURE: NEW APPROACHES TO JUVENILE JUSTICE AND YOUTH VIOLENCE (2002).
1 CHARLES J. OGLETREE, JR., ALL DELIBERATE SPEED: REFLECTIONS ON THE FIRST HALFCENTURY OF BROWN V. BOARD OF EDUCATION, at xiii-xiv (2004); JUAN WILLIAMS, EYES ON THE PRIZE: AMERICA'S CIVIL RIGHTS YEARS, 1954-1965, at xi-xv (1987). 2 TAYLOR BRANCH, AT CANAAN'S EDGE: AMERICA IN THE KING YEARS, 1965-68, at xi-xiii (2006); TAYLOR BRANCH, PARTING THE WATERS: AMERICA IN THE KING YEARS, 195463, at xi-xii (1988); TAYLOR BRANCH, PILLAR OF FIRE: AMERICA IN THE KING YEARS, 1963-65, at xii-xiv (1998). 3 JOHN LEWIS, ACROSS THE BRIDGE: LIFE LESSONS AND A VISION FOR CHANGE (2012); JOHN LEWIS & MICHAEL DORSO, WALKING WITH THE WIND: A MEMOIR OF THE MOVEMENT 5-6 (1998); JACK MENDELSOHN, THE MARTYRS: SIXTEEN WHO GAVE THEIR LIVES FOR RACIAL JUSTICE (1966).

VICTOR NAVASKY, KENNEDY JUSTICE, at ix (1971). JACK GREENBERG, CRUSADERS IN THE COURT: HOW A DEDICATED BAND OF LAWYERS FOUGHT FOR THE CIVIL RIGHTS REVOLUTION, xvii-xix (1994); MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE UNITED STATES SUPREME COURT, 1936-1961, at
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decision,7 and the poignant story of the emigration of southern AfricanAmericans to the North as they fled discrimination and persecution in their home communities.8 Count Them One by One: Black Mississippians Fighting for the Right to Vote takes its place in that literature. In 1961, in Forrest County, Mississippi, while thirty percent of its residents were black, only twelve African Americans out of 7500 were allowed to vote.9 This voter discrimination drew the attention of the Civil Rights Division of the United States Justice Department, which filed a lawsuit against voting registrar Theron Lynd.10 United States v. Lynd11 was the first trial to result in the conviction of a southern registrar for contempt of court.12 The case was a landmark in the burgeoning struggle for civil rights, culminating in the Voting Rights Act of 1965,13 which invalidated discriminatory literacy tests and replaced county registrars with federal registrars.14 Count Them One by One is an engrossing account of the case, written by Gordon Martin, Jr., one of the Justice Departments trial attorneys. A Boston resident, Martin was a recent graduate of New York University Law School and in private practice when he joined the Department and journeyed to Hattiesburg, Mississippi, the seat of Forrest County, to work on this important case. Observing that racial injustice was not limited to a particular region of the country, but was a national scourge, Martin explains: I had seen firsthand Bostons residential segregation, but I knew the single greatest social wrong in my country was the denial of the right to vote to black people in much of the South. I was going to have the chance to help address it.15 Martin, who has enjoyed a distinguished careeras a

vii-viii (1994). 6 JACK BASS, TAMING THE STORM: THE LIFE AND TIMES OF JUDGE FRANK M. JOHNSON, JR., AND THE SOUTHS FIGHT OVER CIVIL RIGHTS 1-2 (1993); JACK BASS, UNLIKELY HEROES 9-10 (1981).
7 MARTHA MINOW, IN BROWNS WAKE: LEGACIES OF AMERICAS EDUCATIONAL LANDMARK 1 (2010). 8 ISABEL WILKERSON, THE WARMTH OF OTHER SUNS: THE EPIC STORY OF AMERICA'S GREAT MIGRATION (2010). 9 U.S. COMMN ON CIVIL RIGHTS, UNITED STATES COMMISSION ON CIVIL RIGHTS REPORT BOOK 1: VOTING 272-73 (1961), available at http://www.law.umaryland.edu/marshall/ usccr/documents /cr11961bk1.pdf. 10 See GORDON A. MARTIN, JR., COUNT THEM ONE BY ONE: BLACK MISSISSIPPIANS FIGHTING FOR THE RIGHT TO VOTE, at x (2010). 11 12 13 14 15

349 F.2d 790 (5th Cir. 1965). MARTIN, supra note 10, at x. See id. at 211-12. Id. at 212. Id. at 43.

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First Assistant U.S. Attorney in Boston; as a legislative aide to Senator Edward Kennedy; as a private practitioner; as a national leader in juvenile justice; as a Massachusetts District Court Judge; as a Visiting Professor at the University of Mississippi; and as an Adjunct Professor at New England Law| Bostonreturned to Hattiesburg nearly thirty years after the litigation, to chronicle the lives of the key participants. As Martin describes it, the Forrest County of the 1950s and 60s was a world of state-financed investigations, spies, and informers intimidating and punishing any black citizens in the state bold enough to assert their rights, even by trumping up false charges and applying outrageous prison sentences for them.16 At the core of the book are the stories of the sixteen black witnesses who Martin prepared for trial. Five were teachers, three men and two women, all with masters degrees awarded or in process from prestigious northern universities. Six of the witnesses were workers employed by Hercules Powder Company, Hattiesburgs major factory. They filled skilled jobs once reserved for whites. Three of the witnesses were ministers. Two were lay leaders, including Vernon Dahmer who was later murdered by the Ku Klux Klan. Their testimony contrasted with the testimony given by four white witnesses, who testified that they were not given any literacy tests or required to answer substantive legal questions when they registered to vote. The black witnesses, however, offered testimony that they were required to pass such tests and to answer complex questions about various statutory and constitutional provisions. As the United States Court of Appeals for the Fifth Circuit would observe, a reading of the sections provided to the black witnesses demonstrate[d] beyond any question that by any objective standard those supplied to the Negro applicants were longer, more complicated, and more difficult.17 Though the answers were often, in the words of the appellate court, worthy of a law review editor,18 the black witnesses were nonetheless denied the right to vote. Consider the answer given by Jesse Stegall in his application:
The legislature has the power to establish corporations. The legislature also has the power to abolish such corporations provided that no injustices are done to its stockholders. Under this section of the Constitution of Mississippi, no charter shall be issued to corporations for capital gain more than a period of ninety-nine years. The property and franchise of corporations having charters exceeding ninety-nine years shall be assessed for taxes and subject to the right of surrendering excess length of

16 17 18

Id. at 18. United States v. Lynd, 301 F.2d 818, 822 n.1 (5th Cir. 1962). United States v. Lynd, 349 F.2d 790, 792 n.4 (5th Cir. 1965).

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Regarding the duties of citizenship, Stegall wrote:

Each citizen under a constitutional form of government has the duties and obligations of: 1, Upholding the laws of the government; 2, Abiding by the laws of the government; 3, Respecting the rights and properties of fellow citizens; 4, Working faithfully to free the government of all subjects who attempt to overthrow the government or try to retard its functions as a constitutional government.20

These impressive answers notwithstanding, Stegall, like so many others, was denied the right to vote. When he returned to Lynds office to learn whether he would be allowed to vote, Lynd said No.21 When Stegall inquired as to what part of the application he had failed, Lynd refused to disclose that information.22 Stegall attempted to register six times, all of which were unsuccessful.23 As Martin recounts, [i]t was clear to him that, even if he a Ph.D., being black, he was not going to pass.24 Count Them One by One operates on many levels. It very much reminds us that great legal struggles are foremost the stories of people and their hopes and dreams. Moreover, without witnesses bold enough to come forward, the cause of voter rights would not have crystallized. Martin asks, Where did they find the necessary courage? In very human terms, he describes a series of witnesses who are indelible. One such witness was David Robertson, the Army veteran, college graduate and high school teacher who observed: Civics and government is taught at Rowan High School and we have voteless people teaching those courses. So this question we asked ourselves: how can we be qualified to teach, yet were not qualified to vote?25 Eloise Hopson, a high school teacher with a Masters degree from Columbia, similarly noted:
How could it have been that blacks with college degrees were considered not competent to interpret the Constitution, and yet there were whites who had not even graduated from high school who were voting. They didnt have to take any kind of test. To me, that was ridiculous. In Forrest County, the leaders of the movement to have black

19 20 21 22 23 24 25

MARTIN, supra note 10, at 72. Id. Id. Id. Id. Id. MARTIN, supra note 10, at 105.

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Seeking Justice people obtain the right to register and vote came from the ordinary people, not the more educated, not the teachers. People like B. Bourn and Vernon Dahmer were not teachers.26

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Another witness, Reverend Wayne Kelly Pittman, explained his participation in the fight in succinct terms: A voteless person is a hopeless person.27 Unlike the witnesses with advanced degrees, Vernon Dahmer did not go past tenth grade. Yet, he was the leader of the community, a courageous mainstay of the tiny but durable NAACP chapter, and its president until the year before his death. Dahmer, who had once been registered to vote, in 1949 was struck from the polls in a reregistration. In 1951, six years before the passage of the twentieth centurys first federal voting rights legislation, he was one of the fifteen plaintiffs who filed suit against the registrarobjecting to the way the state voting rights law was being administered. Although he did not seek to be a witness, when Martin told him that he was really needed, he said that he would be there.28 His testimony would be important in helping to demonstrate the pattern of discrimination in the county. Memorable as well were the black workers at Hercules. World War II veterans like T. F. Williams and Willie Thigpen, testified regarding their unsuccessful attempts to register. A key player in all this was a white man who was not a witnessHuck Dunigan, a union leader at Hercules said, [M]y men not be able to votemy men not to be able to hold any job they were capable of holdingI couldnt permit that.29 Indeed, Thigpen acknowledged Dunagins role:
You know, at that time what kept most colored folks from trying to register, your job was threatened. We had a meeting, and he said: You go and try to register. Dont worry about your job because that wont cause you to lose it. He was a white man, as old as I was. He had been in the service too. I dont know what got him interested in this. He had a lot of support from the colored to get elected as business agent because they run folks against him several times, trying to get him out.30

Another theme that emerges from Martins book is that the process of litigation requires hard work, persistence, and determination in the face of adversity. He recounts how the United States District Court Judge sought to frustrate the Attorney Generals demand for records, filed on August 11,

26 27 28 29 30

Id. at 115. Id. at 161. Id. at 178. Id. at 116. Id. at 140.

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1960 relating to elections for federal office, made pursuant to the Voting Rights Act of 1960thus preventing the Civil Rights Division from establishing a pattern of discrimination.31 The Division appealed to the United States Court of Appeals for the Fifth Circuit, which reversed the trial judges decision and required that the documents be produced.32 When the judge refused to grant a temporary injunction, based on a complaint that black applicants for registration in Forrest County were not being treated without distinction of race [or] color, the Division sought relief from the appellate court, which overturned the trial judge.33 The court observed that [n]otwithstanding the well-nigh impossible task of showing the true facts, the witnesses produced by the government proved without question that certain serious discriminations had taken place during the term of office of the defendant Lynd.34 On appeal after remand from the trial court, the Fifth Circuit observed:
The history traced . . . in that opinion reflects the tortuous path of this effort to vindicate this clear constitutional right. .... As reflected in more detail by our formal findings of fact, we have concluded that Registrar Lynd has violated our order in several major and significant respects. The unfortunate fact is that despite our orders of April 1962 and July 15, 1963the latter of which we hoped would be an inducement to eliminate any vestige of discriminatory practicesNegroes have been denied this precious Constitutional [sic] right because they are Negroes. There has been improvement but both on the appeal and contempt, mandatory orders are required to erase discrimination altogether for all time. .... Obviously the denial of these rightsat one and the same time a violation of the Constitution and the orders of this Court demands correction. At the snails pace to date, it will take decades to eradicate the evil. The Judiciary has the power and the duty to fashion appropriate relief. We have done so in the appeal . . . by directing the entry of a mandatory order. . . . And sanctions are permissible and called for to coerce compliance.35

Accordingly, the Fifth Circuit prohibited racial discrimination, ordered the registration of approximately 280 applicants,

31 32 33 34 35

See MARTIN, supra note 10, at 46. United States v. Lynd, 306 F.2d 222, 231 (5th Cir. 1962). United States v. Lynd, 301 F.2d 818, 818, 822-23 (5th Cir. 1962). Id. at 821. Kennedy v. Lynd, 349 F.2d 790, 791-93 (5th Cir. 1965) (internal citations omitted).

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Seeking Justice forbad rejection of applications for errors or omissions if the applicant satisfied seven specified qualifications, required nondiscriminatory selection from a list of 14 sections of the Mississippi Constitution, and prescribed that Lynd and his deputies notify any rejected applicant of the specific deficiency or deficiencies and afford such applicant the opportunity to correct the error or omission and supply the needed information with respect to the specified qualifications.36

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In recounting the litigation from the perspective of a lawyer who was in the trenches, Martin also offers nuggets of advice for budding trial attorneys. Recognize the importance of the strategic decision in choosing the first witness, who will set the tone of the case.37 Dont ask a question where you dont know the answer.38 The book is a case study in witness preparation and the importance of gaining the confidence of a witness, particularly when facing a hostile court. It is also a study of the ebbs and flows of the trial process. As a lawyer, if you are pleased with your first witness, you want to avoid a letdown with the second. If the leadoff witness was mediocre, you cant wait to get your case on track.39 It is also a case study in the relationship between the trial and appellate court stages, and of the necessity to build a strong record in the trial court for ultimate appellate review. Another theme of the book is how individuals can make a difference. Beside the courageous witnesses who testified, the young lawyers from the Department of Justice were committed in their mission. They came to Forrest County from Washington, leaving their families behind, and spent time learning about the daily life of the local community. Life on the road was difficult, particularly for the African-American lawyer, who, with few exceptions, had no public place to stay or eatracial discrimination that two years later would be barred by the public accommodations provisions of the Civil Rights Act of 1964.40 The leader of this litigation team was John Doar, a Republican appointed to the Civil Rights Division during the Eisenhower administration, who continued as Deputy Assistant Attorney General under the Democratic administration of Attorney General Robert F. Kennedy, and ultimately was Assistant Attorney for Civil Rights.41 As

Id. at 791. MARTIN, supra note 10, at 63. 38 Id. at 93. 39 Id. at 86. 40 See id. at 47. 41 See Owen Fiss, Doar, John, in THE YALE BIOGRAPHICAL DICTIONARY OF AMERICAN LAW 167-68 (Roger K. Newman ed., 2009) (describing John Doars tenure within the Civil Rights Division of the Attorney Generals office); MARTIN, supra note 10, at 28-29, 34 (describing John Doars background and appointment to the Civil Rights Division of the Attorney Generals
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Doar observed, the reach of the Voting Rights Act in 1961 was unchartered.42 His professional, nonpartisan leadership embodied the great traditions of the Department of Justice. Martins book is very much the story of idealism and of the uplifting camaraderie of colleagues engaged in a cause in which they believed deeply. Martins book is also a study in the range of judicial conduct and decision. It is the story of a trial judge whose actions frustrated the civil rights initiative. It is also the story of the courage of four Fifth Circuit JudgesJudge John Brown of Texas, Judge Elbert Tuttle of Georgia, Judge John Wisdom of LouisianaRepublican appointeesand Judge Richard Rives of Alabama, a Democratwho wrote the decisions that ultimately vindicated the constitutional rights of the Forrest County voters. It is also a testament to how the rule of law can triumph in the end.43 Finally, Count Them One by One is a moving account of change and transformation within a community. Martin returned to Mississippi more than thirty years after the events chronicled, and in 2000 was a visiting professor at Ole Miss, where there was a growing number of AfricanAmerican students. Willie Thigpen, when asked about changes in Forrest County, told the author:
The situation here in Forrest County now is 100% better in every way. Now you are recognized. I cant say how folks feel, but I know how they treat you. They treat you like youre a man. You walk in a store and get in line. You dont have to step aside if a white man comes in. You get up to the counter; its Mr. Thigpen, it aint Boy.44

Martin recounts how in August 1998, more than thirty years after Vernon Dahmers murder, a Hattiesburg jurycomposed of six whites, five blacks, and one Asian Americanconvicted Klansman Sam Bowers of arson and murder.45 Vernon Dahmer, Jr. declared: This is a new Mississippi. I came back home to be with my people, black and white. Mississippi has good people.46 In recent years, Hattiesburg has elected an African-American mayor, many black councilors and representatives to the

office); Pete Eikenberry, How to Be a Lawyer: John Doar, FED. B. COUNCIL Q., June-Aug. 2012, at 7, 7-11.
42 See John Doar, The Work of the Civil Rights Division in Enforcing Voting Rights Under the Civil Rights Acts of 1957 and 1960, 25 FLA. ST. U. L. REV. 1, 1 (1997).

See generally Burke Marshall, Southern Judges in the Desegregation Struggle, 95 HARV. L. REV. 1509, 1509-15 (1982) (noting the extraordinary actions of four court of appeals judges who created a revolution of law during an extremely turbulent time in history).
44 45 46

43

MARTIN, supra note 10, at 229-30. See id. at 221. Id.

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state legislature.47 While Judge Martin notes the advances in civil rights, he cautions that further progress in race relations is necessary: More should come, in the state as a whole as they have in Hattiesburg, and when that happens, we can look back to the early beginnings, to the brave black witnesses of Forrest County.48

47 48

Id. at xii. Id. at 233.