The Washington Post
An 1871 law that resurfaced at Charlottesville trial carries a deadly history
A jury in a federal court on Tuesday found that a group of white supremacists engaged in a conspiracy to intimidate, harass or harm during the 2017 Unite the Right rally in Charlottesville, Va., that left one person dead and dozens injured. Though the jury in the civil trial found the defendants liable under Virginia law, it deadlocked on the two claims under federal law, which derived from an obscure section of the Ku Klux Klan Act of 1871.
That act was a result of a prolonged, sometimes blundering effort by Congress and President Ulysses S. Grant to protect newly emancipated and enfranchised Black people in the brief post- Civil War period known as Reconstruction.
The 14th and 15th amendments, ratified in 1868 and 1870, respectively, to provide equal protection under the law and the right to vote regardless of “race, color, or previous condition of servitude,” are bold documents, but both amendments contained a crucial omission: an enforcement mechanism.
Or rather, enforcement was left up to Congress, and judging by the wave of racist terrorism led by the Ku Klux Klan that ensued, the slow-moving gears of the legislative branch proved deadly.
For example, in Georgia in 1868, the Freedman’s Bureau recorded 336 murders or assaults with intent to kill in a relentless campaign of voter intimidation, according to the New Georgia Encyclopedia. Even so, 33 Black men were elected to the state legislature. Over the next year, the men were expelled by state officials and then reinstated by federal officials. By 1870, a quarter of them had been killed, threatened, beaten or jailed. One lawmaker escaped assassination by the KKK when the hooded terrorists killed his brother-in-law by mistake.
Congress responded with the Enforcement Act of 1870, which barred state officials from impeding rightful voters and outlawed voter intimidation and all conspiracies “by two or more individuals” — e.g. the KKK – to prevent anyone from voting.
But Congress also rejected more radical measures some of the Black Georgia lawmakers had requested, like extending their terms in office since they had been forced out for much of their tenure, according to historian Eric Foner in “Reconstruction: America’s Unfinished Revolution, 1863-1877.” A few months later, they were nearly all defeated in the 1870 election.
The situation also worsened elsewhere in the South. In October 1870, election-related “riots” — a word often used to disguise White-on-black massacres – left at least 14 dead in Eutaw, Ala., and Laurens, S.C.
In the summer of 1870, North Carolina Gov. William W. Holden (R) tried to protect Black voters in two Klan-controlled counties when he declared martial law and arrested Klan-aligned local officials. Holden asked Grant for federal help to put down what he said was an insurrection, but the president stalled.
And while Congress’s second enforcement act, instituted in February 1871, strengthened voting protections in large cities, it was more focused on elections in the North, according to Foner.
Then, in March, as many as 30 people were killed in a three-day “riot” to depose Black officials in Meridian, Miss. In North Carolina, White lawmakers successfully impeached and removed Holden from office in retaliation for his “war” on the Klan. (He was pardoned in 2011.)
Finally, Grant was stirred to act as decisively as he had as a Union general in the Civil War. He told the House speaker, “There is a deplorable state of affairs existing in some portions of the South demanding the immediate attention of Congress.”
In late April 1871, Congress passed, and the president signed, a robust third enforcement act, also known as the KKK Act. This made it a federal crime to use “force, intimidation, or threat” to prevent someone from voting, holding office, testifying in court or serving on a jury. If state officials failed to act, then it gave the president the power to use the military to enforce civil rights. It banned wearing disguises like the Klan hood in public, and it suspended habeas corpus for one year, essentially giving Grant the right to hold people in jail without charges.
Grant didn’t wait long to use these powers. Proclaiming it the federal government’s duty to put forth “all its energies for the protection of its citizens of every race and color,” he ordered federal troops to the South to “arrest disguised night marauders and break up their bands.” Thousands of suspected Klansmen were arrested, and those who weren’t fled. In South Carolina, Grant declared martial law in nine counties.
Grant sent his attorney general, Amos T. Akerman, south to oversee the trials of those arrested, eventually securing more than 1,000 convictions.
Did it work? Yes and no. The KKK was destroyed and would not surface again until 1915. But terrorism against African Americans, especially around voting rights, continued. Indeed, 1873 marked the deadliest massacre of the era, over contested election results in Colfax, La.; three White men and between 50 and 162 Black men were killed.
Voter intimidation undoubtedly helped former Confederates sweep back into power in the 1874 midterm elections. The Supreme Court overturned part of the enforcement acts in 1876, and by the next year, Reconstruction was over.
White supremacist groups have surged again in the 21st century. The plaintiffs who sued the Unite the Right organizers — current or former residents of Charlottesville who said they sustained physical or emotional injuries from the rally — turned to the KKK Act, specifically seeking damages against the organizers under one of the law’s least-remembered provisions, allowing victims of racist violence to sue the perpetrators in federal court.
Although the jury could not decide on the plaintiffs’ claims under the KKK Act in the Charlottesville case, that isn’t the end of the law’s resurrection. The plaintiffs’ attorneys said Tuesday that they may try the case again under the federal charges involving the KKK Act. And the law is also being cited in post-jan. 6 lawsuits against former president Donald Trump.