Echoes of Reconstruction: A High Profile Case Is Being Prosecuted Under the Enforcement Act of 1870

ECW is pleased to welcome back Patrick Young, author of The Reconstruction Era blog.

The Enforcement Act of 1870 was written to protect the democratic system during the Reconstruction Era from white supremacist conspiracies designed to take away the right to vote or other civil rights from newly enfranchised former slaves. The Act has drawn some attention because it is being used in a current high-profile Federal case. I won’t discuss the current case, but I do want to discuss the statute and how it came to be.

While the Ku Klux Klan started in 1866, the terrorist organization saw a dramatic increase in membership in 1868 as Black men were widely enfranchised for the first time in United States history. Ulysses S. Grant was running in 1868, and white supremacists saw the Black vote as Grant’s chance to take the presidency. 

Klan and other organized groups like Louisiana’s Knights of the White Camellia carried out widespread killings and assaults on Blacks throughout the South during the ten months prior to the election that year. Seeing the impact of violence on the political situation in the South, terrorist attacks were an everyday occurrence in 1869 and 1870. The violence did not just suppress Black voting, it was also used to control Black labor, prevent Black families from moving into white neighborhoods, stop interracial marriages, and hinder public education for African American children.

A historic image visualizing the oppression and suppression enforced by the Klu Klux Klan.

While the army tried to stop the violations of the rights of Blacks, cases that were referred to the local courts were often not prosecuted. In 1870, Congress began to pass a series of acts known as “The Enforcement Acts.” Attempts to pass these lasted from 1870 to 1874 and they were designed to enforce the rights granted by the 14th Amendment. One Enforcement Act that passed in 1870 is now contained in 18 United States Code Section 241. As you can see from the penalty for violating it, acts covered by it were considered a serious violation of law:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Ten years imprisonment, life imprisonment, or death! 

Now the death sentence can only be imposed when particularly serious physical harm occurs like murder, attempted murder, sexual abuse, etc., but the ten year sentence can be imposed for a host of non-physical crimes.  In  United States v. Mosley  the lower court dismissed the claim, which involved county officials misreporting vote counts, because it did not rise to the level of violence Congress had been trying to address. The Supreme Court reversed saying that the 1870 Enforcement Act “did not confine itself to conspiracies contemplating violence.” Prosecutions have been successful for a variety of non-violent interferences with elections, typically altering returns, stuffing ballot boxes, etc.

In 1870, the group that Congress wanted to protect were recently freed former slaves living in the South, however there is nothing in the language of statute that says that the victims of the conspiracy have to be Black or that the deprivation of civil rights has to be the result of racial discrimination.

In the 1876 case United States v. Cruikshank, the Supreme Court said that an Enforcement Act prosecution against those people carrying out the 1873 Colfax Massacre of more than one hundred Blacks could not stand. The court said that the Act was not designed to go after private individuals, it was only designed to go after governmental actors. This was a major setback for those trying to protect Black rights. The Enforcement Act was passed to go after the Klan, but the Supreme Court said that unless the Klan perpetrators were government officials or in the pay of the government, they could not be held liable under this act. 

In the 1960s, courts allowed the prosecution under the Enforcement Act of conspirators involved in taking away people’s right to vote and other rights, such as the case against the Ku Klux Klan for the 1964 Freedom Summer murders. 

In recent years, 18 United States Code Section 241 has been used against perpetrators depriving American voters of their right to have a free and fair election. 

For additional information on the Colfax Massacre, see The Colfax Massacre: The Untold Story of Black Power, White Terror and the Death of Reconstruction by LeeAnna Keith Oxford University Press, 2008.

13 Responses to Echoes of Reconstruction: A High Profile Case Is Being Prosecuted Under the Enforcement Act of 1870

  1. I searched in vain for any mention of the post-War disenfranchisement of white males in the South and the Union League…..presenting both sides of the picture is called journalism.

    1. As Carson Foard knows there were no laws disenfranchising “white males” in the South. On the other hand no Southern state allowed voting by Black people in their state at the end of the Civil War.

      1. I believe that until the passage of the Fifteenth Amendment there might have been several northern or Union states that also disenfranchised black voters.

      2. Patyoungcarcen2019 is quite wrong. State laws prohibited former Confederates from voting, holding office, serving on juries, and engaging in other civic duties. These laws created a political majority in the South of Unionists, Freedmen, and those usually termed Carpetbaggers. It was this situation that sparked the creation of night riding groups such as the Klan, the Knights of the White Camelia, the Palefaces, etc. When ex-Confederates regained the right to vote, establishing a conservative Democratic majority, these groups vanished.

        John Pryor is correct in general but shy of the mark in his assessment of the practice of black voting. In 1867 Tennessee became the fifth state in the nation to grant the suffrage to African American males—only four Northern states allowed blacks to vote in 1867.

      3. Michael Bradley is wrong. There were no laws prevented white men from voting. which is what Carson claimed. All through Reconstruction, sizeable numbers of white men voted in every state.

      4. And former Confederates? How many Southern states disenfranchised former Confederate soldiers? Arkansas disenfranchised former Confederates until they amended their constitution in 1872. If you disenfranchise former Confederates in the post-war South, then you effectively disenfranchises most white voters. Even though, technically, you have not disenfranchised white voters per se. Sure, this was done at the state level. State governments had always controlled the actual act of voting, even until today. Former Confederates could not hold public office until Congress issued an amnesty in 1872.

        I see the need to prevent former Confederates from essentially re-establishing all that had existed before. But, still, it is mis-leading to say there were no specific anti-white laws, while there were many anti-Confederate laws.

  2. To use this Act in the present case is clearly a constitutional stretch. But prosecutors historically throw as much as they can against the accused in order to either coerce a plea bargain or get a conviction on some lesser charge.

  3. Pat Young says there were no laws preventing white men from voting. Mr. Young is misinformed. In June 1865 the General Assembly of Tennessee passed a franchise law that prevented some 80,000 ex-Confederates from voting. In May 1866 a second, more severe franchise law was passed which permanently disenfranchised all ex-Confederates in the state. The admitted intention of these laws was to prevent the ante bellum political dominance of Democrats from returning and to ensure Republican control. I would refer Mr. Young, and all other interested parties, to Ben H. Severance, Tennessee’s Radical Army, U. of Tennessee Press, 2005. Other states had similar laws.

    In 1869 the newly elected governor of Tennessee, DeWitt Clinton Sentor, convinced the General Assembly to restore the suffrage to ex-Confederates. The Klan in Tennessee was disbanded that year and, at the next election, conservative Democrats regained control of state government.

    White men could vote, Mr. Young, but not if they were ex-Confederates, not in Tennessee, where there were laws disenfranchising them.

    1. This is nonsensical. Many states refused to allow immigrants who were noncitizens to vote. By Michael Bradley’s reasoning, these were also a law prohibiting white men from voting. Similarly convicted felons could not vote in many areas. This was also a law preventing white men from voting, according to Mr. Bradley’s reasoning. We could also say that preventing men from voting if they were less than 21 years of age was also a prohibition on white men voting, using Mr. Bradley’s logic.

      In reality, there were no states prohibiting white men from voting.

  4. The act of 1870 also has a couple of Sections (14,15) that invoke Section 3 of the XIV Amendment, recently in the news.

  5. Mr. Young’s reply to my post is rather curious. The “reasoning” I present is a citation of historical facts. The laws I cited are on the books and can be found by following the source I provided. Does Mr. Young deny the existence of state laws disenfranchising ex-Confederates? IrishConfedrate cites laws in Arkansas which disenfranchised former Confederates. I repeat , white men could vote but not if they were ex-Confederates. Mr. Young cannot escape the reality that fact supports my position–it is a fact that ex-Confederates were disenfranchised .

    1. There were no laws taking away the right to vote based on being a white man. There were in many states laws taking away the right to vote based on being Black. Those are the historical facts.

  6. Mr. Young is making a narrow legal point which is true but not the whole truth. I have noted in each of my comments that white males could vote but not if they were ex-Confederates. This is the historical fact. While not all white males in the South were disenfranchised the majority of white males (ex-Confederates) were. The basis on which they were so treated was not race but the result was still disenfranchisement. To say that white males were not so treated presents a misleading picture of the Reconstruction Era.

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