"I then sued the Tennessee Secretary of State to nullify the felon disenfranchisement law."
Last week I described my foibles and failures
attempting to employ federal law in federal courts to throw out bad
voting laws installed by Republican cabals in the 70’s and 80’s. As
Clements said, history may not repeat, but
it rhymes.
Because the feds dismissed the plaintiff’s complaint for failure to state a claim, the many issues raised by Wesley vs. Collins went largely unresolved and it has festered as untidy precedent and the subject of many law review articles but affords scant satisfaction.
It
did not fester long with me. While it was still on appeal, I paid a
call on a close friend, the great law professor and appellate litigator,
Lewis Laska, and asked his advice. He and I discussed the possibility
of a state case under Tennessee’s constitution. Tennessee had a very
unique Constitutional history and Laska and I had both previously
researched that to fine nuance.
In Tennessee’s original 1796
Constitution all free men over twenty-one years of age, including free
black men, were given the franchise, without requirements for property
ownership, wealth or literacy. By 1834 Antebellum sentiments had shifted
and the right was amended to “Every free white man of the age of
twenty-one years.”
Women, slaves, and Indians were still strictly
out of luck. Now they were joined by black men. Enfranchisement had
lasted just 38 years. Roe v. Wade has been on the books for 48 years. Power shifts.
There
is something to be said for the survival strategy of picking as your
Vice President someone who is hated by those who might wish you harm.
Kennedy’s choice of LBJ is a poignant example of the wrong choice.
Likewise Reagan and G.H.W. Bush. Actual bullets establish my point.
Agnew, Gore, Pence, and Kamala Harris were all safe choices. Lincoln’s
“Group of Rivals,” “charity for all, malice towards none,” and “bind the
wounds” sentiments may have been noble, but they made him a no-brainer
(no pun intended) target when he chose Andrew Johnson for his Veep.
After
the fall of Fort Donelson on February 15, 1862, the greater part of
Tennessee came into the possession of the Union army. President Abraham
Lincoln appointed Andrew Johnson to be military governor. For more than
two years, Johnson exercised complete and dictatorial control over state
government. In 1864, Johnson was nominated to run as Lincoln's
Vice-President, and because he desired to obtain the free electoral
vote of his own State, he permitted the Union party to call a political
convention. At the 1865 convention, the party passed a resolution,
purporting to be a constitutional amendment, which was to have the
effect of disenfranchising anyone who had voted for or served in the
secessionist government or in the Confederate army. In the presidential
election of 1860, before the war, 145,000 votes had been cast in
Tennessee. In the first general election in 1865, after the convention,
the State's voters cast only 25,000 votes, about the number of Union
army troops occupying Tennessee at the time.
— Gaskin vs. Collins, December 12, 1983.
A pardoned former Confederate soldier sued (Ridley, 43 Tenn. 569.). Justice Shackelford, writing for the Tennessee Supreme court, lamented:
The
elective franchise is not an inalienable right or privilege, but a
political right, conferred, limited, or withheld, at the pleasure of the
people, acting in their sovereign capacity. Each State may define it in
its own Constitution, or empower its Legislature to do so.
This
situation was intolerable to a majority of citizens so the Assembly put
out the call for a new Constitutional convention and in 1870 that body
returned voting rights to most. While instituting a few more pernicious
clauses, like residency and poll taxes, it allowed all men to vote
regardless of their race or Civil War affiliations. Most importantly, it
wrote in this:
Article 1, Section 5:
The
election shall be free and equal, and the right of suffrage, as
hereinafter declared, shall never be denied to any person entitled
thereto, except upon conviction by a jury of some infamous crime, previously ascertained and declared by law, and judgment thereon by court of competent jurisdiction. (Emphasis added)
Stephen
Gaskin was convicted on November 11, 1971 of the felony of
“manufacturing marijuana.” At that time, it was not an infamous crime.
In 1975, he completed his term of incarceration and returned to society
with all of his former rights, privileges and immunities restored. In
1981 the local registrar of voters sent him a notice that he was
henceforth off the rolls. Tennessee had just passed a law which had the
effect of expanding the definition of infamous crimes to include all
felonies, and disenfranchising all felons regardless of when they were
convicted.
With the Wesley case I described here last
week already moving through federal filings, I paid a call on another
friend, Richard H. Dinkins, whose prominent Nashville firm, Williams
& Dinkins, specializes in civil rights cases and who had personally
won the historic settlement of a 43-year old school desegregation case
against the Nashville School System. After listening to my case theory
in Wesley and now Gaskin, he walked me over to see another civil rights legend, the Reverend C.T. Vivian,
organizer of the first sit-ins in Nashville in 1960, the first civil
rights march in 1961, and the Freedom Rides. I had not expected that. I
was a bit too was awestruck and choked to even speak.
Meekly, I
explained what I was doing and asked him for any advice. He looked at me
a long time and finally said, “Good luck to you.”
That was it. I
don’t know if he thought I was just a white honky hippy dabbling in his
life’s work or he admired my spunk, but I was on my own.
Gaskin vs. State
My first test of the law, going to Federal Court, sought to enjoin it as ex post facto—elevating
the punishment for a crime retroactively. That failed because the court
declared Tennessee’s purpose was not to punish anyone, just to
reasonably regulate the ballot box, which it had every right to do. Ex post facto did not apply because this was not punishment.
I then sued the Tennessee Secretary of State to nullify the felon disenfranchisement law.
The
State process was a different matter. We won in lower court. The State
appealed. We briefed, they briefed. It went to the State Supreme Court.
The slower Wesley case was still winding its way through to the
Sixth Circuit Court of Appeals with the promise of national impact if
it won. I was in full court mode, all the while limping along on The
Farm’s subsistence budget of one dollar per day per resident. To support
trips to the Vanderbilt law library I wrote letters to mailing lists of
potential donors asking for gas money. Back then you could do
non-profit bulk mailings for about 4 cents per piece, The Farm had a
small Davidson press, and 5000 letters could push this work along for
another month.
On the day of oral argument I got up early, rinsed
the sprouts for my 20-member group home (a minor catastrophe explained
in my retelling of this story in Voices from The Farm), fetched
my hand-sewn three-piece denim “law suit” in its dry cleaning bag (nod
to Suzanne Suarez Hurley), and walked to the motor pool dispatcher to
pick up my arranged-for vehicle, which unfortunately was out of service
or hijacked into service already and elsewhere. I then frantically
looked for a ride and fortunately our Angel-One free neonatal ambulance
service was going up to serve greater Metro Nashville that day and could
give me a lift. Stork-like, they dropped me at the courthouse steps in
my neatly pressed suit and shiny vegan shoes.
My case was second
on the docket, to be argued in opposition by William P. Sizer, Asst.
Atty. General of the State. I then watched a most amazing ritual as
Court was called into session. An elderly black man in white porter car
jacket came and straightened the chairs at the podium and placed a
ledger at one end of the table. Docket sheets were placed at each
Justice’s place along the bench. The Bailiff entered and called All
Rise. Five white Justices filed in in order of reverse seniority and
took their seats. The black porter moved down the bench, offering the
ledger for each to sign, again in reverse seniority order.
When my
case came up, the Attorney General had the first go. At one point I was
so certain I was winning, just listening to him, I failed to suppress a
chuckle and was immediately embarrassed for my lack of decorum. When my
turn came I was in good form, having seen no surprises and liking the
questions that had come from the bench. I wrapped myself in the Ol'
Stars and Bars and whistled Dixie. “Mr. Gaskin is as much entitled to
his right to vote after being disenfranchised for a crime he committed
in 1971 as he would be had he been a Confederate bugle boy in 1864.” Or
words to that effect. Stephen was not really that old, which I think
they appreciated.
Writing the unanimous opinion, Justice Drowota said:
It
is obvious that the 1870 constitutional convention was comprised of men
who had known the injustice of retroactive disenfranchisement and were
determined to safeguard themselves and future generations from similar
acts of repression. That this right was preserved by constitutional
amendment rather than legislative enactment accentuates its importance
to the people of the State of Tennessee. We cannot ignore the reasons
for which this amendment was adopted without usurping the will of the
people who saw fit to include it in our constitution. Accordingly, the
finding of the Chancellor, that Article I, Section 5 of the Tennessee
Constitution prohibits the General Assembly from retroactively
disenfranchising convicted felons who have never been adjudged infamous,
is affirmed.
This was a case of first impression for
this part of the Tennessee Constitution in the 183 years it had been on
the books. When the court read its ruling on December 12, 1983, it gave
a Christmas present to more than 200,000 convicted felons in Tennessee,
disproportionately young people of color caught up by the fabricated
War on Drugs. I was invited to the State Penitentiary and given a framed
certificate of appreciation by the inmates. The State was tasked with
setting up and administering polling stations inside the walls. Right
wing media went ballistic. I was just happy to think an audacious,
long-haired hippy might have earned C.T. Vivian’s quiet respect.
The
case was only retroactive to convictions before 1981, so by now the
vote-suppressing Republicans have the upper hand again and the black
population is underrepresented not only in Tennessee but in all the
other states where the Civil War had no effect on later voting. Wesley vs. Collins,
wrongly decided, remains the law of the land. Other devices are being
deployed to wreck the vote, State by State, and Congress is deadlocked
by absolute refusal of the GOP-controlled Senate, with its plus-two
Manchin/Sinema majority, to pass the John Lewis Voting Rights Act. At
least 262 bills were introduced in 41 states this year with the intent
to subvert the election process. Of those, 32 have already become law in
17 states.
And so we drift….
As someone who until the
present pandemic traveled the world, I have been fortunate to live in
many cultures where the color of one’s skin is unremarked; below notice.
Many places. I might even say most.
That is as it should be. Skin
tone is an infinitesimally small fraction of the genome and meaningless
as any indicator of character or social worth. Using it as a tribal
symbol is inane. Cancel me for having said that if you will but I am
sticking to it.
That it is such a strident holdover from American
slavery and genocide today speaks poorly of the USAnian character and
our willingness to reconcile our myths with our legacy of ethnic
cleansing and other atrocities. With our drone wars—$6 trillion and a million civilian deaths since 2002—black
detention sites, secret prisons, and torture—we are the terrorists.
Until we can drop our resistance to that collective healing, we will
only keep cutting new wounds and salting old ones.
When the
pandemic arrived, the US treated WHO the same way it habitually treated
staff of various international human rights agencies, the International
Court of Justice, and the UN Rapporteur on Torture. One irony, of
course, is that with the seamless transmission of callous, hegemonic,
US-first, vaccine diplomacy between Trump and Biden (and steadfast
defense of patent rights to prevent end-around runs), has resulted in
the waves of new variants that are wrecking the American economy,
democracy, and place in the world, and may continue doing so for another
year or more. The newly-minted legacy of ill will spawned by
thoughtless, jingoist, selfish vaccine hoarding and willingness to let
millions to die will fester for an eternity.
But it never needs to be that way. It doesn’t have to be.
Peace on Earth. Good Will to All.
This
is the second of two parts that I will use to close out this, the
second year of The Great Pause gifted to us by the Covid pandemic. This
memoir is part of a book I am developing with a Russian co-author, Тюрин
Глеб, to recall for large literary audience of Russian-speaking youth
the story of the hippies, and in particular the relevance of the The
Farm to today’s ecovillage and ecosystem regeneration movement, now
growing strong across the white frosts of that vast, beautiful, and
ever-changing landscape.
The COVID-19 pandemic
has destroyed lives, livelihoods, and economies. But it has not slowed
down climate change, which presents an existential threat to all life,
humans included. The warnings could not be stronger: temperatures and
fires are breaking records, greenhouse gas levels keep climbing, sea
level is rising, and natural disasters are upsizing.
As the world
confronts the pandemic and emerges into recovery, there is growing
recognition that the recovery must be a pathway to a new carbon economy,
one that goes beyond zero emissions and runs the industrial carbon
cycle backwards — taking CO2 from the atmosphere and ocean, turning it
into coal and oil, and burying it in the ground. The triple bottom line
of this new economy is antifragility, regeneration, and resilience.
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#RestorationGeneration #Regenerosity
“There
are the good tipping points, the tipping points in public consciousness
when it comes to addressing this crisis, and I think we are very close
to that.”
— Climate Scientist Michael Mann, January 13, 2021.
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