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

the

of

history

leading

up

to

this

landmark

achievement through the release of the movie SELMA.

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

conclude with a challenge to you as lawyers.

slip out early.

will

So dont

If youve got a court appearance in

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

jail; they dont have the power to get you out of mine.

SELMATHE 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

preceding year.

cinematic

excellence

for

the

SELMA has been nominated for Best

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

been nominated for Best Original Song.
The
created

movie

and

the

Motion

some

controversy.

Picture
Some

Academy

historians

have
have

criticized the movies depiction of President Lyndon B.

Johnson as a reluctant supporter of the Voting Rights
Act.

And others have criticized the Academys snub of

David

Oyelowo,

Luther

King,

the
Jr.

British
in

the

actor

who

movie,

and

played
who

Martin

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.

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.
without

his

character,

the

march

Montgomery would not have happened.

from

But

Selma

to

And I dont 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

recess

appointment

October 22, 1955.

by

President

Eisenhower

on

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

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

plaintiffs,

Browder,
filed

along

with

lawsuit

in

four

other

federal

challenging Montgomerys segregated bus seating.

black
court
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 Constitutions 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 Johnsons
Montgomery chambers.

Today Id like to focus on what

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

do that, Id like to try to make the case that there is
a connection between the Middle District of Georgia and
Selma.
TWENTY YEARS BEFORE SELMAPRIMUS E. KING
The
United

15th

Amendment

States

was

to

ratified

the
in

Constitution
1870,

and

of

it

the

clearly

established the right to vote for citizens regardless

of

their

race

or

Notwithstanding
constitutional

previous
the

right,

condition

creation
many

of

of

this

clear

Southern

states

placed

obstacles in the path of black voters.

poll

taxes,

literacy

Democratic Primaries.

servitude.iv

tests,

and

These included

the

All

White

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

generally registered to vote.

literacy

test,

and

was

Because Republicans did

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

primaries.
the

holder

was

effectively

chosen

in

those

Thus by denying blacks the right to vote in

Democratic

establishment
participating

Primary,
effectively

in

the

the

white

excluded

selection

of

political
them

their

from

government

officials.
In 1944, civil rights activists in Columbus, led by
local

physician

Georgias

All

Thomas

Brewer,

decided

White

Democratic

to

challenge

Primary.v

recruited a brave black barber, Primus E. King.

in

mind

that

this

was

almost

decade

before

They
Keep
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

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

ballot

at

4,
the

1944,

Primus

Muscogee

King

County

Democratic Primary Election.

sought

to

cast

Courthouse

in

He was denied.

the
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

Georgia.

Court

for

the

Middle

District

of

Attorney Smiths 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

previously ruled in another case out of Texas that such

racial

discrimination

unconstitutional.

in

primaries

was

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.
would

go

on

to

That attorney, Thurgood Marshall,

serve

on

the

United

States

Supreme

Court.
Judge Daviss 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,

Eugene Talmadge, was the front runner for the Democrat

nomination.
door

is

And he blasted the ruling, stating If the

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 Daviss

ruling

as

Negroes

the

interracial

higher

justifies.ix

than

uplifters

his

advancing

limited

Unfortunately,

this

the

civilization

racist

rhetoric

foreshadowed heightened obstinacy on the part of many

whites

to

deny

blacks

the

right

that

Judge

Daviss

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

Klan

and

some

representatives

of

law

enforcement.

These deprivations were particularly aggressive during

the 1946 Georgia Governors race.
abolished

the

poll

tax

in

Although Georgia had

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
John

United States Attorneys in Georgia, including

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

District.

lynchings

occurring

in

the

Middle

One happened in Taylor Countyxiii and the

other in Monroe, Georgia in Walton County, which was

located in the Middle Districts Athens Division.

The

Walton County lynchings, which involved the killing of

four

blacks

at

the

wooded

10

bridge

at

Moores

Ford

Crossing over the Apalachee River, received national

attention.
and

Judge

three

The FBI got involved in the investigation

Davis

weeks

announced

on

convened

after

being

December

federal

grand

empaneled,

3,

1946

the

that

it

establish the identity of the murderers.

jury,
grand
could

but
jury
not

Judge Davis

released the grand jury, but not permanently; they were

subjected

to

being

became available.

recalled

if

additional

evidence

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

Talmadeges

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.
received write in votes.

Two other persons also

The Talmadge forces took the

11

position that the Legislature should elect the Governor

from the top two vote-getters who were still living,
which included Herman.
battles began.

And the political and legal

State Repesentative Bob Elliott from

Columbus was Herman Talmadges 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
Senator.xv

U.S.

instrumental

in

As

United

the

States

appointment

of

Senator,
Judge

he

J.

was

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

county.

to

enforce

blacks

voting

rights

county

by

In 1954, twenty black citizens from Randolph

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

12

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 Bootles 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

(Ive

been

accused

challenged

to

President

Obama

duel

of

treasonous

when

ineligible

13

I
for

conduct

refused

to

office

due

and

declare
to

his

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.
there,

They intensified voter registration efforts

but

they

also

planned

to

make

Albany

the

epicenter for a broad based attack on continued racial

segregation.
Albany

Dr. King was brought in

movement

the

national

profile

to give the
it

needed

to

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

Albany jail.
rights

But due to infighting among the civil

activists

and

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.

14

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

temporary

restraining

order

preventing

Dr.

King from participating in a protest march in Albany.

That

ruling

was

subsequently

Tuttle of the Fifth Circuit who

order

until

merits.xx

Judge

Elliott

overturned

by

Judge

stayed the restraining

held

hearing

on

the

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

order

Judge

Elliott

said

that

he

issued

the

because credible threats had been made that if Dr. King

marched that day, he would have been killed.xxi

15

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 Birminghams 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,

Rights

directly.

it

And

did

that

not
piece

address
of

Voting

unfinished

business, left over from the Albany Movement of 1961

and

1962,

described
Negroes

needed
it,

some

the
part

to

be

completed.

Civil
of

Rights

their

Act

rightful

As
of

Dr.

King

1964

gave

dignity,

but

without the vote, it was dignity without strength.xxii

16

The

march

toward

strength

would

occur

in

small

town, fifty four miles from the Alabama Capitola 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 Alabamas Statehouse in Montgomery ended in violence
on March 7, 1965, when deputies beat protesters as they
crossed the Edmund Pettus Bridge.
as Bloody Sunday.

The press labeled it

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

17

out in the only place he thought they would be treated

fairly--the

federal

district

Judge Frank Johnsons court.

court

in

Montgomery,

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

learning

that

Executive

Branch,

the

President.
After

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.
thousands

from

Montgomery

on

gathered

in

They were joined along the way by

around

March

front

of

the

country.

24
the

and
State

18

They

approximately
Capitol

reached
25,000

building

on

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

mothers 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 was:

He replied, like the Judge

My only goal was to enforce the Constitution.

The actions of the judges sitting on the federal bench,

19

hasnt been for the purpose of effecting social change.

I approached it strictly from a legal standpoint.

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

Democratic Primary unconstitutional in 1945.

have sympathized with Primus King.
he did what he did.

White
He may

But that is not why

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.

20

For

lawyers,

hopefully

it

belong to a noble profession.

to

vindicate

unprotected.

legal

rights

reminds

you

that

you

One that has the power

that

otherwise

may

go

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

lawsuit to make it so.

it

took

lawyer

filing

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

21

will be 100 lawyers waiting to give him their card.

But if that same poor persons legal rights have been
violated in a manner that does not lend itself to a
contingent

fee,

help

is

harder

to

find.

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, dont chuckle defensively.

Tell

them youd 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, dont forget the lawyers!

Thank you.

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)

22

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/williambootle-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/williambootle-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/historyarchaeology/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://mlkkpp01.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, Courts 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, Courts Legacy Intertwined with Martin Luther King
Jr.s, United States Courts, http://news.uscourts.gov (last visited
1/15/2015)
xxv
Id

23