The Washington PostDemocracy Dies in Darkness

A post-Reconstruction proposal that would have restored power to the people

Albion W. Tourgée’s largely forgotten legislation could have prevented today’s Moore v. Harper Supreme Court case.

Members of the League of Women Voters rally for voting rights outside the U.S. Supreme Court as justices heard oral arguments in the Moore v. Harper case on Dec. 7. (Drew Angerer/Getty Images)
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This month, the Supreme Court heard oral arguments in Moore v. Harper, which threatens to undermine fair elections by allowing state legislatures unrestricted power to gerrymander congressional districts.

After the 2020 census, North Carolina’s Republican-controlled state legislature redrew congressional districts to maximize Republican victories, only to have a divided state Supreme Court invalidate its map because of its naked partisanship. In Moore v. Harper, the legislature claims that the court’s ruling is forbidden by Article I, section 4 of the U.S. Constitution, which reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature, thereof.”

This effort to deny judicial oversight in drawing congressional districts is a version of the independent state legislature theory, the most publicized iteration of which was the effort of Donald Trump’s unscrupulous lawyers to give state legislatures the power to name presidential electors that overturned the popular vote. But Trump’s efforts contravened existing state laws.

What gets lost in the more substantive debates over Moore v. Harper is that history provides an example of a path not taken. In the years after the Civil War, a once-prominent North Carolina Republican laid the groundwork for an approach to protecting voting rights that is at complete odds with today’s Republican demands. Indeed, if Congress had heeded the advice of Albion W. Tourgée 132 years ago, Moore v. Harper would not exist.

After fighting to save the Union and eliminate slavery in the Civil War, Tourgée moved to North Carolina, where he spent 14 years fighting the Ku Klux Klan and trying to institute a republican form of government that guaranteed rights for African Americans. In 1868 he helped write a new state constitution, adding its prohibition on “secession.” He was extremely wary of unbridled power in the state legislature, as evidenced by the ban he included on “discrimination by the State because of race, color, religion, or national origin.” Tourgée tried to check state legislative power further with a provision that insisted on the separation of “legislative, executive, and supreme judicial powers” along with one that stressed, “All political power is vested and derives from the people.”

By 1870 white supremacists had regained control of North Carolina. That year, the states ratified the Fifteenth Amendment, plainly prohibiting infringement upon the right to vote because of “race, color, or previous condition of servitude.” Yet, Tourgée experienced firsthand the impotency of congressional legislation to enforce it in the face of widespread intimidation of African American voters in the South. That intimidation allowed Democrat Grover Cleveland to win the presidency in 1884 and install ex-Confederates in his Cabinet.

Republicans attributed Cleveland’s victory to “the suppression of the ballot by a criminal nullification of the Constitution and the laws of the United States.” During the 1888 campaign they demanded “effective legislation to secure integrity and purity of elections.” By that time, Tourgée, largely forgotten today, had become the most prominent White defender of African American rights in the country because of his best-selling Reconstruction fiction and a weekly newspaper column. When Republicans swept the White House and Congress that year, Rep. Harrison Kelley contacted Tourgée to draft a bill.

Drawing on his experience in the South, Tourgée sought to close loopholes in existing federal legislation to uphold African American voting rights. His draft bill also explicitly prohibited gerrymandering. Ironically, the constitutional basis of his bill was the same provision at the heart of Moore v. Harper. Article I, section 4, starts by granting state legislatures control over the times, places and manners of congressional elections — but then goes on to empower the U.S. Congress to take direct control itself. Even a conservative Supreme Court that had partly eviscerated the acts enforcing the Fifteenth Amendment for state and local elections upheld provisions for congressional elections in Ex parte Siebold (1879) and Ex parte Yarbrough (1884).

Sponsored by Kelley, Tourgée’s bill was initially endorsed by the Speaker of the House Thomas Reed and a prominent group of African Americans. In March 1890, despite poor health from Civil War wounds, Tourgée traveled from his transplanted home in Upstate New York to testify before the House committee charged with selecting a bill. There, however, Tourgée’s bill ran into a roadblock. The committee’s chairman was Henry Cabot Lodge, who had drafted his own bill, modeled on the ineffective enforcement acts of the early 1870s. Lodge’s bill left states in control of elections but provided supervisors to oversee federal elections under some circumstances.

Tourgée dismissed the supervisory system for being “about as valuable as a sieve would be for the purpose of a water bucket.” Lodge disagreed. Although his bill targeted suppression of African American voters in the South, it was also aimed at immigrants in Northern cities who tended to vote Democratic. Lodge cited a former New York supervisor who praised the supervisory system’s effectiveness in the North.

But what worked in New York, Tourgée countered, would not work in the South. For instance, supervision kicked in only if enough locals registered a complaint about the conduct of federal elections. Because of violent intimidation in the South, anyone who lodged a complaint would risk his life. “How many Republican Senators,” he asked, “would dare sign such a petition?” In a letter to the Detroit Plaindealer, African American M.W. Caldwell echoed Tourgée and asked: “Will Congress buy the coffins, will the President make funeral arrangements?”

Equally important, Lodge’s willingness to leave state legislatures in charge of congressional elections had major consequences. For Tourgée, only federal control could substantially reduce threats of violence and legal means of suppression. In his bill, federal, not state, officials would register voters and decide places to vote. Congress would set dates and manners of elections for the entire nation. Congress, not state legislatures, would fix congressional districts bound by strict standards to prevent the “most outrageous system of gerrymandering.” Although Tourgée’s bill left state and local elections untouched, it guaranteed that African Americans would remain voters and force congressional candidates to consider their needs.

Republicans opted for Lodge’s bill, in part because it was cheaper and in part because some benefited from gerrymandered districts. Lodge’s bill passed the House only to have the Senate version defeated by one vote, when some Republicans traded votes to get Democratic support on economic issues. Historian Eric Foner calls Lodge’s bill “the last significant effort in Congress in many decades to protect the constitutional rights of black Americans.” Others praise it as a model for the 1965 Voting Rights Act. But that praise points to the limitations of the Voting Rights Act. By providing some federal guidelines while leaving states in control, it allows the U.S. Supreme Court to undermine its effectiveness by siding with states when disputes arise.

The same year Tourgée’s election bill failed, he was contacted by a group of Afro-Creoles from New Orleans who persuaded him to embark on his most famous failure. In 1896, serving as Homer Plessy’s lead attorney, Tourgée failed to convince the Supreme Court to invalidate a Jim Crow law passed by Louisiana’s state legislature, ushering in the “separate but equal” doctrine.

In Moore v. Harper, critics of the state legislature’s argument advocate the checks and balances of separate branches of government. They do not, however, note that Congress need not defer decisions on crucial aspects of congressional elections to the Supreme Court. Congress has the power to eliminate gerrymandering of congressional districts by partisan state legislatures and to create uniform procedures for electing senators and representatives in all states. Such legislation would help restore political power to the people, as Tourgée advocated years ago.