Trump may have Violated the Ku Klux Klan Act
By: Robert Davis
Tags: Politics, Trump, Racism, Law, Elections

The day after President Donald Trump invited three Michigan Republicans to the White House to discuss not certifying the state’s election results, a civil rights organization filed a lawsuit in the District of Columbia’s Circuit Court alleging the president and his campaign violated a post-Civil War law meant to bar disenfranchising voters “on account of race, color, or previous condition of servitude.”

The Michigan Welfare Rights Organization (MWRO), who filed the lawsuit alongside four Black voters who cast ballots for Trump, said in the document that the president’s “repeating [of] false claims of voter fraud” and “pressuring [of] state and local officials in Michigan not to count votes from Wayne County, Michigan (where Detroit is the county seat)” would essentially “disenfranchise hundreds of thousands of voters,” many of whom are Black.

“Defendants’ tactics repeat the worst abuses in our nation’s history, as Black Americans were denied a voice in American democracy for most of the first two centuries of the Republic,” the 12-page document reads.

The judge assigned to this case? None other than Judge Emmitt Sullivan, who you may recall from the infamous Michael Flynn prosecution.

While Sullivan’s presence is sure to bring enough fireworks for lay observers, it is important to understand the historical gravity of the charge against President Trump and members of his campaign.

What the KKK Act Is and Isn’t

Trump and his campaign are accused of violating 42 U.S.C.A. §§ 1983 — AKA Section 1 of the Ku Klux Klan Act — which was created to help enforce the provisions of the 13th, 14th, and 15th Amendments.

Known as the Third Enforcement Act, the law was passed in 1871 during a period known as Reconstruction. It was meant to directly respond to widespread violence and voter intimidation against Black communities by white people and members of law enforcement.

It protects “any citizen of the United States or other person within the jurisdiction thereof [from] the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” It also holds that parties found to violate the law “shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity.”

At the time of its passage, the US was still reeling from the Civil War and in the midst of monumental change. For the first time in history, two Black men were seated in the Senate — Hiram Revels and Blanche Bruce, both of whom were from Mississippi. Similarly, the first public school systems in the south opened and, according to the Smithsonian, there was broad support for “guaranteeing full citizenship rights to all Americans, regardless of race.” Leading the charge was a former Confederate officer named Amos T. Akerman, the US Attorney General from 1870 to 1871.

President Ulysses Grant appointed Akerman to handle the onslaught of postwar legislation flowing through the newly minted Department of Justice because he respected Ackerman’s sense of honor. When he was appointed, Akerman was said to have defected from the Democrats to the Party of Lincoln because “Some of us who had adhered to the Confederacy felt it to be our duty when we were to participate in the politics of the Union, to let Confederate ideas rule us no longer….Regarding the subjugation of one race by the other as an appurtenance of slavery, we were content that it should go to the grave in which slavery had been buried,” according to the Smithsonian.

Yet, while these “emancipationist” policies were enacted, outside forces worked to grow the chasm between White and Black America.

As historian Ron Chernow detailed in his biography of Grant, Mississippi enacted laws that prohibited Blacks from enjoying recreations like hunting or fishing while white militias under auspicious names like the Jefferson Davis Guards sprung up across the nation.

This created a situation where racial terrorism ran rampant in Mississippi. During the first three months of 1870, Chernow found over 63 Black people were murdered, and the guilty parties spent a total of zero nights in jail. The US Attorney for the state was said to have remarked that “if it weren’t for the presence of the US army, the Klan would have overrun north Mississippi entirely.”

However, these atrocious acts were not only committed by private citizens. Many members of law enforcement participated as well, which is exactly what the KKK Act is designed to address. Section 2 of the Act makes it illegal to “conspire to deprive people of their equal protection under the law.” Sections 3 and 4 authorize redress against state officials who are complicit in such acts.

However, the effectiveness of the law has waned since its passage. The year it was enacted, over 3,800 convictions were secured in its name. Since then, few outside the Klan have been prosecuted under the Act. Most of the time, Section 1 is invoked in cases against law enforcement officers. But, the law has proven to be an ineffective tool, at best.

Rendering of Judge Carlton Reeves. Credit: CNN

The KKK Act Today

In the modern era, the KKK Act has been primarily cited in qualified immunity cases — a legal theory that posits a civil servant can’t be held accountable for crimes in which there is a discrepancy between the facts and the Constitutional provisions in question.

Qualified immunity is an incredibly potent defense. Several constitutional scholars agree the theory protects all but the “plainly incompetent or those who knowingly broke the law,” according to an article in the Yale Law Journal. To this end, the KKK Act is a toothless shark.

Judge Carlton Reeves, who occupies a federal bench seat in the Southern District of Mississippi, took the Act to task in his opinion in Jamison v. McClendon, a case where a white police officer dismembered a Black man’s rental car over suspicions the driver was carrying drugs.

According to the opinion, Officer McClendon subjected Jamison to over two hours of “badgering…pestering…and lying…” before conducting a top-to-bottom search of his car for drugs. McClendon left Jamison’s car in pieces, totaling over $4,000 in damages. As Judge Reeves succinctly said, “Nothing was found. Jamison isn’t a drug courier. He’s a welder.”

However, because there is no settled law concerning the actions law enforcement officers must take during traffic stops, his request for qualified immunity — which Judge Reeves said reeked of absolute immunity — was granted.

“But, let us not be fooled by legal jargon,” Judge Reeves wrote in his opinion. “Immunity is not exoneration. And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine.”

Photo by Maria Oswalt on Unsplash

On the Future

It should be noted that this lawsuit has little chance of success. If US 42 1983 can’t be used to prosecute police officers, there is no way it will touch a sitting President.

However, the unflattering weakness of the law’s enforcement is already shaping the future of American politics — namely, it underpins the GOP’s attack on voting rights for Blacks, Indigenous, and other people of color.

“[Trump’s] systematic efforts — violations of… the Ku Klux Klan Act — have largely been directed at major metropolitan areas with large Black voter populations. These include Detroit, Milwaukee, Atlanta, Philadelphia, and others. Defendants have not directed these efforts at predominantly white areas,” MWRO’s lawsuit says.

The truism Republicans tend to rely on in these efforts goes like this: smaller turnouts favor the Right while large turnouts favor Democrats. 2020 was a perfect example.

The Brennan Center for Justice has been tallying the numerous post-election lawsuits attempting to roll back voting rights across the country. While the sheer volume itself is overwhelming, a few through lines appear.

One of the most damning narratives is that Trump and his campaign are diligently working to redefine “eligible voters” and “eligible votes” as those who regularly participate in elections and come from predominantly white cities and counties.

Sen. Rand Paul (R — KY) made a similar argument on Fox Business when he said he was “very, very concerned that when [officials] solicit votes from typical non-voters, that [the voters] will affect the outcome [of an election].” By non-voters, Paul obviously means “non-whites.”

These arguments are already starting to have an impact on the first election of 2021, the runoff for both of Georgia’s senate seats. The Center for Public Integrity recently labeled the state a “hot bed of voter suppression tactics.” Even though the state rid itself of the Jim Crow-era poll taxes, the state is one of 19 that still requires voters to show ID to vote.

Georgia also has an aggressive method for purging voters from registers. Many believe these tactics are what delivered the state governorship to Brian Kemp over Stacy Abrams in 2018.

Since the 2020 election ended, NBC News found 40% of Georgia’s most populous counties have reduced polling places ahead of the senate runoff. Each county mentioned has a sizeable BIPOC population. Similarly, a recent lawsuit alleges over 200,000 voters were illegally purged from voting rolls ahead of the 2020 election.

What may be more damaging is that Trump’s repeated lies about the scale of fraudulent votes cast in 2020 are being used as justification to reverse key voting rights policies.

In Wayne County, Michigan, election canvassers signaled their support for such measures when one canvasser said she would be “open to certifying the rest of Wayne County (which is predominately white) but not Detroit (which is predominately Black), even though those other areas of Wayne County had similar discrepancies and in at least one predominantly white city, Livonia, the discrepancies were more significant than those in Detroit,” according to the lawsuit.

One way to combat these GOP efforts is to restore the Voting Rights Act of 1965 to its original condition. In 2013, the Supreme Court struck down an important provision of the law, which opened the door for local jurisdictions to make it more difficult to vote. Recently the American Civil Liberties Union recommended President-elect Joe Biden issue an Executive Order to restore the Act to its former prominence.

Congress could also pass legislation to strengthen federal enforcement of voting laws. However, this will be a pipedream if the GOP manages to retain control of the Senate.

Still, it is tough to imagine a more un-American act by a sitting president. Even Mitt Romney had to break with his party in defense of voting rights for all Americans.

“Having failed to make even a plausible case of widespread fraud or conspiracy before any court of law, the President has now resorted to overt pressure on state and local officials to subvert the will of the people and overturn the election. It is difficult to imagine a worse, more undemocratic action by a sitting American President,” he said.