tv Historians as Expert Witnesses on Civil Rights CSPAN March 12, 2017 11:35am-11:55am EDT
tv was at the american historical association's annual meeting in denver, colorado. we spoke with professors, authors, and graduate students about their research. >> we are with professor vernon burton of clemson university and peyton mccrary, george washington university law school lecturer and former department of justice historian. you are fresh off your panel on historians as expert witnesses. when are historians used as expert witnesses, professor burton? prof. burton: in our case, we have done mainly voting rights work. goes back a number of years but historians were used quite a bit -- are used quite a bit and now in a lot of different kinds of litigation. explaining circumstances. looking at intent. so everything from environmental concerns to medical issues. tobacco.
company. suits. so, it's for me, i think, they could almost be used anywhere to help put things into perspective for what, in the voting rights sort of lock-in and we think of explaining the totality of , circumstances of why a law is passed. host: you spent 26 years with the justice department. as a historian. when did you become being used as an expert witness? prof. mccrary: i first got involved as an expert witness in 1980 when the supreme court handed down a decision in a case known as city of mobile versus bolton where the court established that minority plaintiffs challenging a law as racially discriminatory had to demonstrate that it was either adopted or maintained for a racially discriminatory purpose, not merely that it had a racially discriminatory effect. since the law in question in the
mobile case was adopted in 1911, there were not any participants around to be used as witnesses. the only way to figure out intent was to hire a historian to do research. i was teaching at the university of south alabama. so i guided the research and we used graduate students as as research assistants. other historians and social scientists got involved in the case as expert as well. but i was the person who did the focused research on the intent question. host: in that case and in others, have you typically been called to testify on the stand as well? prof. mccrary: oh, yes. that is where the testimony was presented. in the city commission case i was on the stand for a day and a half as i recall. and so, that was the first of 40 or 50 cases in which i was serving as an expert in the 1980's, only 14 of which actually went to trial and i
testified in them. host: professor burton, when did you first start as a historical expert witness and how much is this part of your work as a professor at clemson? prof. burton: it varies, because right now i am not involved in any voting rights cases. but it began as peyton explained, attorneys realized quickly when the supreme court basically upheld that you had to explain that a law was designed or intended purposely to discriminate and it was not just the law might have a discriminatory effect. there was a case in edgefield, south carolina. i did my dissertation on edgefield. in 1980, i was contacted to work on the case and began, that began a long series of involvement, primarily in voting rights cases, some discrimination cases, just a few
years ago the angola prison case , where he had been in solitary confinement since 1972. those are quite different kinds of cases, though than what we had been doing, voting rights cases. over the years for minority plaintiffs. host: let's start with peyton mccrary. tell us a bit about the process for preparing for a trial. how is it different from your academic work and the process you go through. prof. mccrary: interestingly it does not different as much as -- differ as much as one might think from academic work. the courts have a long followed a set of guidelines set by the supreme court in 1977 for how one investigates the intent question using circumstantial evidence. it happens that that is the way historians and political scientists have always analyzed political decision-making. and so, what we are doing is essentially what we do in the scholarly world, except that it
is going to be presented in a particular venue where a particular law is at issue, a particular decision, and it is more limited in scope than the research we typically publish. the court asks for detail ed scholarly analysis of the intent underlying the adoption of the law. and so, you have to be in many respects better than when you are publishing because there is always a high-priced lawyer trying to show that your analysis is wrong, who's working for the other side in the case. host: professor burton, tell us about your process. prof. burton: very similar. and i want to add that after mobile v. bodin, voting rights advocates went back to congress. congress thought that supreme court was wrong in this. and they amended the voting rights act. so you no longer after 1982 needed to show intent.
you still could show intent, and attorneys still want us to do it, but instead, with the amendment in 1982, that if a law in effect discriminated then , that law could be declared unconstitutional. most good lawyers like an action -- an extra arrow in their quiver. so they continued to use people for intent or the other side of that is that both peyton and i were of a generation of scholars, we both did our graduate work at princeton. where there was a heavy social science emphasis on quantitative technique. so, one of the most important things that the courts decided is to show racial block voting which involves statistical techniques. so, doing that as well. but with the renewal of the voting rights act in 1982 they also listed out factors they thought needed to be shown as
part of the law toward intent. and basically they called it the totality of circumstances. that is what we have already done this historians. our methodology is to explain the totality of the circumstance in which a law or certain things happen. and we've basically, even though the court came up with these, it is what as historians we were trained how to do research. host: give us an historical context. tell us why the voting rights act of 1965 was necessary? prof. mccrary: it was adopted because of the extreme levels of racial segregation in regard to the political process, that is specifically discriminatory voter registration procedures that prevented african-americans in the south from being registered voters. and therefore, kept them from being able to vote at all. and the courts had largely been unsuccessful in eliminating that problem through a case by case
litigation. as soon as the court struck down one procedure, the local jurisdiction or the state would change the procedure and they, the justice department would have to sue all over again. so, the congress came up with the idea that it was necessary to step into the process, and create a mechanism by which these discriminatory election procedures could be eliminated. and the court upheld its constitutionality in 1956 in the -- 1966 in the case known as south carolina v. katzenbach. the voting rights act gradually eliminated those restrictions on registration and voting so that african-americans in the south were able to vote. it is something that came to approach parity with whites after 20 years. host: go ahead. prof. burton: i have often said
somewhat in jest, but i think it is true that choose things -- two things change the american south, the voting rights act and air-conditioning. it's ironic that americans understand better how air-conditioning works then they understand how the laws that govern our democracy work like the voting rights act. host: why do think that is? prof. burton: a number of reasons. one is, i think we put much more emphasis on science, math and how important that is, the stem discipline, when in a democracy i think it is critical thatin -- that in fact people are educated as citizens which is what we do as historians. what used to be known as civics in high school that people do -- just do not understand particularly laws that have come about since 1955. -- why they're necessary and how 1965. they are enacted. host: peyton mccrary mentioned this 1966 case, the spring court upheld the voting rights act.
was this the first challenge to the act and how of the cases involved -- evolved over the years? prof. mccrary: south carolina challenged it. it's relevant to what has been happening lately because the court did uphold the law. they were saying they were being treated unfairly, particular in the law. i like to use the quote that ren usedstice war that said "history called up -- caught up with south carolina and the other states that have joined. he actually cited some of the more extreme statements of benjamin tillman who was the governor who, by the time he was state senator, but led this the dis-franchising convention of 1895 in south carolina to show why this was necessary. host: all of these cases changed -- however these cases changed over time?
>> once african-americans were largely free of the discriminatory barriers to voting cases were brought to , challenge use of at-large elections for local governing bodies and state legislatures. because they diluted minority voting strength and prevented the election of african americans in the southern states. later the concern expanded to state outside the south. -- states and latino voters and -- states outside the south. and latino voters and in some cases american indian voters in other parts of the country. and vote dilution cases made up the primary source of cases that we'd testified in and the 1980's. and that the congress had in mind when it amended section ii of the voting rights act to eliminate the intent task. -- test. in recent years, however, the courts have also had cases
involving once again restrictions on voter registration procedures and voting in person. in cases where states adopted photo i.d. requirements. substantially cut early voting in a variety of states and other restrictions on casting a ballot. we thought we had once dealt with now comes back as a whole new problem, the problem of the vote denial. host: historically, these dilution cases, we saw an uptick in these efforts across the states recently, back after the civil, the voting rights act was passed. prof. mccrary: after the voting rights act was adopted and blacks began to vote in larger numbers, it occurred to white folks in the south you need to have at-large elections to keep them from electing anyone to office. in other cases the laws were quite old.
i mentioned the mobile law adopted requiring at-large elections. other laws were adopted in the 50's or they were challenged in 60's. the 1980's. host: professor burton, you were going to chime in? prof. burton: i was the expert witness for the league of women voters in south carolina and in the texas photo voter i.d. recent cases. and i thought that was where you were going. so i just was going to mention, but it's interesting one of the things i did in both of those cases was to so just how similar in fact those laws were two old laws which it been found unconstitutional and the ationale given every time vote dilution law passed from reconstruction up to the current day, it was always, in fact, the same rationale which was voter
fraud to show that this had a certain pattern over time. host: current day, what is the status of voting, voter i.d. laws across the country? prof. mccrary: in texas and north carolina, they have been struck down by the courts as in violation of section ii of the voting rights act. and with current construction of the supreme court with only eight members, the decision of the courts of appeal is we think practically, for practical purposes, final. so both of those laws will not go into effect as a result of successful litigation by the department of justice and minority plaintiffs, combining efforts against those laws adopted by the republican majorities in texas and north carolina. there are other states where such laws are adopted and have been challenged in court is in -- as in wisconsin. where the pattern is still mixed in terms of how the courts are
going to handle it. so, it depends on the state as to where the situation is with regard to those laws. host: professor burton, what is the most recent supreme court ruling or decision on the voting rights act? prof. burton: this is very important because peyton worked at the justice department all those years. and probably the most effective part of the voting rights act was section v which said that those jurisdictions that have been covered, most of those had been in the old confederacy, a few others outside and later, in fact, had to have their any changes that affected voting in any way, had to have those laws pre-cleared. that could be done by the justice department or by a federal washington, d.c., three-judge panel and things. so, that was an extraordinarily important in changing the south over time. well, the formula had not been
revised, since i believe 75. although, there was a huge amount of testimony in the renewal of the voting rights act, only in 2006, in support of it. and congress was almost unanimous in support of it. but, in fact, the supreme court found that section iv, which was the formula, was no longer relevant and it is a very different - -that the warren court in upholding in the 1966, the voting rights act and the roberts court said that states should not be treated different. whereas the warren court was concerned about the rights for people to vote. i think it is a major shift, that's going on there. ruth bader ginsburg did one of those great to sense -- dissents that historians will write about 200 years now using the analogy of, you're not getting rained on so you put your umbrella away. host: you both are just off your
panel discussion on historians as expert witnesses. quickly, a couple of brief takeaways from what you heard in questions from the participants. prof. mccrary: one of our panelists, from cal tech, had referred to an argument made by some european historians who had written about expert witness work that it would be a good idea to establish a coat of dashcode of -- code of ethics for the history profession -- code of ethics for the history profession specifically thinking about the spirits in tobacco litigation. and that was enthusiastically received by the audience. but the point i made, and which i think all of us agree with is that historians testifying as expert witnesses and voting -- in voting rights cases have always followed a code of ethics that may not have been, may not have been true of experts testifying in tobacco litigation.
but that was the big take away from the morning session i think. prof. burton: the second take away i think was that you would not notice by looking at peyton and i that we are getting up in age. host: i think people would notice. prof. burton: we're so young looking. this expert witness has kept us young. the need for historians to be involved. host: the younger historians. prof. burton: for the next generation. it is something that takes a lot of time to you asked me about it. the other thing we discussed is should someone do this work. that we are speaking truth to power, the courts, that we have knowledge has historians that other people who do not have access to. and i think it is really part of our professional, if you want to say ethics or obligation, to bring that to light, the help -- to help judges understand the
totality of circumstances and things that maybe there would be a way the profession could recognize this kind of work because it does take a way. i would've had a lot more books and a lot more distinct career -- distinguished career if i had done less less of this. i think i did the right thing. but you have to admit it takes a lot of time. and one of the things people suggest is publishing reports as a way of recognition of this is professional work. host: professor vernon burton and mr. peyton mccrary we appreciate your taking her time -- you taking your time with us on american history tv. thanks for being here. prof. mccrary: thank you. >> you are watching american history tv all weekend every weekend on c-span three. to join the conversation, like us on facebook >>. . we provide film