[The 1870s laws passed by the Reconstruction Congress to enforce
14th Amendment rights and to protect Black voters, ignored for
decades, are now being used against Trump.]
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A BRIEF HISTORY OF THE KU KLUX KLAN ACTS  
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Joseph Patrick Kelly
August 4, 2023
The Conversation
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_ The 1870s laws passed by the Reconstruction Congress to enforce
14th Amendment rights and to protect Black voters, ignored for
decades, are now being used against Trump. _

Special counsel Jack Smith,

 

In the indictment against former President Donald Trump and his role
in the Jan. 6 violent attack against the U.S. Capitol, special
prosecutor Jack Smith charged the former president with violating four
different federal laws – and Trump pleaded not guilty to each one of
them on Aug. 3, 2023.

Three of the charges in United States of America v. Donald J. Trump
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are fairly easy to understand. They require a jury to determine
whether Trump tried to overturn the lawful results of the 2020
election and if he knowingly conspired to obstruct the certification
of results on Jan. 6, 2021, all in an attempt to remain in the White
House.

But the fourth charge against Trump – of conspiring against the
rights of the voters to cast ballots and have them fairly and honestly
counted – is more complicated, and it comes from a dark time in U.S.
history.

As a historian
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studies and writes about democracy and the American South, I believe
the 1870s have something to teach us about the fourth count in the
Jan. 6 case against Trump.

Ku Klux Klan Acts

The indictment asserts that Trump knowingly conspired “to injure,
oppress, threaten, and intimidate one or more persons in the free
exercise and enjoyment of a right and privilege secured to them by the
Constitution and laws of the United States – that is, the right to
vote, and to have one’s vote counted.”

That quote comes from a series of laws enacted in the 1870s called the
Ku Klux Klan Acts. They are officially known as the Enforcement Acts
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because they empowered the federal government to enforce the Civil War
amendments
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– the 13th
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14th
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and 15th [[link removed]]
amendments that freed enslaved people and guaranteed equal protection
of the laws and the right to vote.

As the Brennan Center for Justice
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points out, in the 20th century the Supreme Court has ruled that all
sorts of election infringements violate the Enforcement Acts,
including stuffing ballot boxes and bribing voters. A suspect
doesn’t have to commit violence against Black voters to violate the
law.

[Five people sitting on one side of a table with papers on the table
in front of them.]
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Former President Donald Trump with his attorneys inside the courtroom
during his arraignment at the Manhattan Criminal Court on April 4,
2023. Seth Wenig/AFP via Getty Images
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Retreat from democracy

When the Ku Klux Klan tried to steal the 1872 presidential election by
killing and intimidating
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newly enfranchised Black men, federal troops swooped into South
Carolina and arrested hundreds of Klansmen. The Department of Justice
secured convictions
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in 140 cases by using the law that is being used to prosecute Trump.

Congress had to expand the attorney general’s staff into an entire
department of government
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to handle the excessive case load.

The Klan prosecutions worked.

The 1872 election [[link removed]] was
relatively free and fair. In South Carolina, where the Black
population outnumbered the white population, President Ulysses Grant,
who had commanded the Union Army in the Civil War and led it to
victory
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over the Confederacy, won with 75% of the vote.

After Grant was reelected, many champions of Black rights lapsed into
what historians often characterize as a moral fatigue. According to
historian Eric Foner’s “Reconstruction: America’s Unfinished
Revolution
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a “resurgence of overt racism” in the North triggered a “retreat
from Reconstruction.”

The turning point
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was at Colfax, Louisiana.

Just before Easter in 1873, federal soldiers steamed up Louisiana’s
Red River to investigate reports of yet another wave of white
terrorism against Black citizens.

As later described by Col. T.W. DeKlyne
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as the soldiers approached the town of Colfax, they saw neglected
neglected crops and abandoned farmhouses. They followed a trail of
corpses to the charred, smoking remains of the courthouse, whose
grounds were strewn with more dead bloating in the sun. Some were
burnt. Others had been shot, execution style, in the back of the head.

In his history of the Colfax massacre
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journalist Charles Lane estimated that between 62 and 81 Black men
were killed, most after they surrendered to the white militia.

Despite the bloodshed, Louisiana officials did nothing to hold the
murderers accountable.

But federal attorneys indicted 98 men. Nine stood trial, including one
William Cruikshank
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who Lane described as the “burly, self-confident” plantation owner
who had supervised the executions.

Cruikshank was convicted not of murder but of the federal crime of
conspiring to violate
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the civil and voting rights of Americans – the same crime that Trump
is charged with.

The case [[link removed]] was
appealed to the Supreme Court, where justices heard all sorts of
arguments on the authorities of state and federal governments to
enforce voting rights laws. But the real issue was whether the federal
government, 11 years after the end of the Civil War, still had the
will to protect the civil rights of Black people.

[A white man dressed in a dark military uniform stands at a table with
another white man dressed in a military uniform.]In this illustration,
Gen. Ulysses S. Grant, left, accepts the surrender of Gen. Robert E.
Lee. Getty Images
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The Supreme Court set William Cruikshank free, and white supremacists
established racist regimes in every Southern state for nearly 100
years thereafter.

According to Nicholas Lemann, professor emeritus at Columbia
University, the Civil War did not end in 1865 at Appomattox Court
House
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– the Virginia village where Confederate Gen. Robert E. Lee
surrendered his forces to Union Gen. Ulysses S. Grant.

The last battle
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contends, was fought at Colfax, and the South won. The South staged
unfair elections for the nearly the next 100 years. Not until the
Voting Rights Act of 1965
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did the federal government signal it would force states to hold free
and fair elections.

Civil War amendments today

The latest retreat by the Supreme Court from defending Black civil
rights might have begun in 2013, in its Shelby County v. Holder
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which the justices abolished a key part of the 1965 Voting Rights Act
that ensured federal oversight of voting rules in areas with a history
of discrimination. The 5-4 majority held that states could be trusted
to guarantee citizens’ voting rights.

Writing in dissent, Justice Ruth Bader Ginsburg compared enforcing the
Civil War amendments to “battling the Hydra,” the multiheaded
monster that sprouted new heads after one was defeated.

In North Carolina, for instance, the Republican lawmakers tried to put
what is known as the “independent state legislature theory” into
practice. That theory
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holds that state legislatures are the supreme authority in federal
elections.

But in the Moore v. Harper
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Chief Justice John Roberts disagreed and wrote in the 6-3 majority
opinion on June 27, 2023, that the “federal court must not abandon
their own duty to exercise judicial review” over elections.

Given this long history of advance and retreat, it’s not surprising,
then, that special counsel Jack Smith, in his use of a law to
prosecute Trump that dates back to the Reconstruction Era’s laws
protecting the Black vote, has reasserted the Department of
Justice’s power to enforce the Civil War amendments.[The
Conversation]

Joseph Patrick Kelly
[[link removed]],
Professor of Literature and Director of Irish and Irish American
Studies, _College of Charleston
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This article is republished from The Conversation
[[link removed]] under a Creative Commons license. Read
the original article
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* History
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* Civil Rights
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* Reconstruction
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* Civil War
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* Jack Smith
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* Donald Trump
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